File HO 45/23509

Succession to the Throne When Sisters
May Be Co-Heirs.

By THE LONDONER. Evening Standard, Aug. 22, 1930.

Our King lives; God save him! No gossiping tongue has
been
whispering that the throne is like to be vacant this year or next
year. There would seem to be a kind of little treason in talking of the
King's heirs and who should follow him. .
As for his son. the Prince of Wales, did you ever see a young
man with
a better hope for a long life than this Prince who rides and flies and
swims with such a stout heart?
Yet there are times when even the loyallest subject may
speak of the royal pedigree and ask where, if this or that befall,
shall go the rights of the succession to the throne.
We are not clever at such things: it is no wonder that our
ancestors
fell to argument, and then to killing one another, in the cause of York
or Lancaster.

But let us talk now of what may be in
the years to come. There was debate of this sort when the Duke of
Clarence was suddenly dead. His brother, Prince George, had
fallen sick. Prince George was then without wife or child. Everybody
then was asking who, if Prince George should die, would be next in
direct succession to the Crown.
Some people guessed and guessed wrong; there was a fancy that
things might go as they went in the old kingdom of France, where
the heir male would succeed.
But those were muddle-headed people who had forgotten by what right
Queen Victoria had been crowned. The
cleverer people guessed that Prince George's heir would be the
Duchess of Fife, the eldest of his sisters. A better
guess, that, than the guess of those who forgot Queen Victoria. But it
was not the last word in guessing.
There was Mr. John Horace Round, a bitter antiquary in debate, but a
very keen-witted gentleman who would take nobody
else's tale for
gospel. The Duchess of Fife was
indeed the eldest of the daughters of Edward, Prince of
Wales. By what warrant, asked Mr. Round, should
the eldest daughter be chosen ?
Everybody could answer him that this was a matter of common
sense, The
eldest son is heir, then why not the eldest daughter when it comes to
choosing one of the daughters? Would you take the second daughter or
the third?

If anybody listened to Mr. Round they took his words for an antiquary's
nonsense.
Yet Mr. Round was a sharp-witted
antiquary. We will go back to the beginning of
things and find how the crown was settled
by Act of Parliament.
The last Act of Succession was that made by King William III.,
reigning
as king alone, after the death of Queen Mary.
Queen Mary was dead, a childless Queen. It was by the Act of King
William's Parliament that her sister Anne followed him. She also left
no child. After her should come " the most excellent Princess Sophia,
and the heirs of her body being Protestants."
By virtue of that Act, King George is now our King. All
sovereigns after him must be
heirs of the body of that most excellent Sophia, unless a new
Act comes to be passed.
Until this time all has gone fairly. Prince
George became King George the Fifth, whom God
preserve. There is his Queen; there are his children. There was
no need for anybody to answer
Mr. Round's question
about the position of Prince George's sisters.
Nor should there be need now to argue about the children of the
Duke of
York. Surely the Prince of Wales shall one day be King, and a married
King. Count up all the Kings from the Conqueror onwards; you shall
find that none was a bachelor save William whom we call Rufus.
None but he— and he was a very bad King—unless you must reckon with
those two King Edwards who did not come to a man's years.
So the Prince of Wales shall find the right princess in the end.

It is only for argument's sake that we consider the case of the Duke of
York. Give us leave to imagine the Prince of Wales dead without a
child; the Duke of York dead and leaving two daughters.
Which daughter should be heir to King George and his kingdoms?
Mr. Round's answer was that neither would be sole heir.
The law of the land, which calls the eldest son or the only son
an
heir, will do as much for one daughter. But it will give no daughter
any precedence over her sisters; all sisters are co-heirs together.
If the sisters should be co-heirs of the sovereign no one of
them
could inherit as heir and be queen.
Surely a new Act of Settlement would be framed in good time.
Else, as
one might believe, there would be no crowned head in England. It is
hard to say what then would become of our law-making while the monarchy
was in abeyance.
Better think no more of such puzzling questions. The Prince of
Wales is
still heir apparent, heir manifest. All will come right in the end.
BALMORAL CASTLE.
25th. August, 1930.

Dear Boyd,

Will you kindly let me know if there is any truth in the idea
stated in
the enclosed press cuttings, that the succession, according to the Act
of Succession, would not fall naturally upon Princess Elizabeth, if
unfortunately all the other Heirs to the Throne were to die, and that
the two sisters if still living would be joint Heiresses ?

Yours very truly,

Stamfordham

H.R. Boyd Esq., C.V.O., G.B.E.,
Home
Office.
26th August, 1930.

Dear Lord Stamfordham,

Thank you for your letter of August 25th and I return you the two
press
cuttings in regard to the succession to the Throne which you sent me as
I think you may want to keep them. I had already seen the
Evening News cutting by the Londoner, who, by the way, is Oswald
Barron, and who, as you know, is quite an authority on heraldry and
similar subjects. I know him, as I have often met him at
the Mint Advisory Committee, and he helped us a good deal in designing
the Knights and Baronets Badges.

Anderson and all our pundits on the subject are all away on leave
so I can only give you off-hand my personal opinion, for
what it is worth. I think that Oswald Barron
is wrong and I am much more inclined to agree with the article by
Dermot Morrah in today's Daily Mail, of which I send you a
copy, though I know nothing of the author, & I think
some of his statements are inaccurate.

As I have always understood it the succession to the Throne
devolves very much in the same way as the succession to a Barony by
Writ, sons being preferred to daughters, with
this difference, that there is no abeyance between daughters and the
elder daughter takes before the younger. The principle of
the descent of the Crown under the Act of Succession seems to be that
of an entail on the descendants of the Electress Sophia and on every
demise of the Crown the heir to it must be sought in the lineal heir of
Sophia, provided such heir is a Protestant. In fact her heir
might not be heir to the private estates of the last
monarch. If, for example, a sovereign should leave a son
and a daughter by a first marriage, and a son by a second marriage, and
the son of the first marriage should die without issue, he would be
succeeded in the Throne, not by his sister of the whole blood, who
would be the heiress of his private estates, but by his brother of the
half blood, who would be the lineal heir of the Electress Sophia.

You will understand that I am only giving you now my personal
opinion,
which is that the analogy of a peerage does not apply. I do
not think there is any question of co-heirship between the Princess
Elizabeth and her new sister, and I feel pretty sure that as things
stand now Princess Elizabeth, under the Act of Succession, would be the
lineal heir of the Electress Sophia. However, I do
not profess to
be any authority on the subject, and it seems to me to depend entirely
on the legal interpretation of the
wording of the Act of Succession. The actual words used are
"heirs of the body" and I think the inference is that lineal heirs are
meant..

If there is any real doubt in the matter perhaps the best thing
would
be a little later on, when the various pundits have returned from their
holidays to have the matter fully considered by the
Lord Chancellor and the Home Secretary, with the
assistance of the Law Officers. If then
the whole question cannot he made absolutely clear without possibility
of dispute, it would not I think be a very difficult
matter to pass a new Act of Succession.

I do not think I can say any more than this at the moment, but if
there is any point you would like cleared up
immediately, please let me know And I will do my
best.

Yours very
truly,

(Signed) H. R. BOYD,

The Lord Stamfordham,
G.C.B., G.C.I.E., G.C.V.O.

The Succession to the Crown in the Case of Daughters

Mr. Barron's article in the Evening News of 22nd August raises
the question whether the law of succession makes provision for the case
where a sovereign dies leaving two or more daughters but no
son. The general belief is that in such a case the elder
daughter succeeds in the same way as an elder son. Mr. Barron,
however, questions this, basing himself on an article by the late Mr.
Round entitled "The Succession to the Crown" (in "Peerage and Family
History" 1901, at p.458 ff.). Mr. Round was a very great authority on
antiquarian and peerage questions, but I think there can be no doubt
that in this instance his knowledge of peerage law, assisted perhaps by
a natural love of contradiction and controversy, led him astray.

The succession is governed by statute (12 and 13 William III,
cap.2),
under which the Crown "remains and continues to Princess Sophia and the
heirs of her body being Protestants". The question at issue turns
on the interpretation of the words "heirs of her body".
Mr. Round's argument is simply that in peerage cases a limitation to
heirs of the body does not give the dignity to the elder
of two or more sisters to the exclusion of the others - in other words
the peerage falls into abeyance between the co-heiresses - and the same
words in an Act governing the succession to the Crown must be
construed in the same way as in peerage cases.

I cannot see any sufficient ground for the assumption that
because the Crown is an office of honour, a dignity, and indivisible,
therefore it
is governed by the laws of succession which apply to a
peerage. The Crown is not a Peerage, its
circumstances and the considerations which apply to it are quite
different from those relating to a peerage, and it is governed by a law
of succession of its own which is not the same as peerage law and which
does recognise the right of an elder sister to succeed in preference to
a younger one. I think this can be shown from usage, common
law, and Statute law.

(a) Usage.

I can find no trace whatever of the existence of any custom, by which
the succession to the throne in the case of females followed the same
rule as the succession to peerages. It is hardly too much
to say that there is no evidence that such an idea ever occurred to any
one, lawyer or layman, until Mr. Round suggested it.

There have been several occasions when the Crown would or might
have gone into abeyance between daughters or the descendants of
daughters if abeyance had been possible in law, but on neither of these
does the right of the elder line to succeed appear to have been
questioned on the ground of the equality of co-heiresses.

(1) On the death of Richard III the Crown would on Mr. Round's
theory have gone into abeyance between the several daughters of Edward
IV. Henry VII married the eldest daughter, who on the
ordinarily accepted view of the law was the rightful Queen. It is well
known of course that Henry claimed the throne in his own right (which
was non-existent) and strongly objected to any suggestion that he
reigned in right of his wife. But it is notable that he
undertook to marry Elizabeth of York before he made his attempt; and
that after his coronation Parliament urgently petitioned him to do
so; obviously there was a strong feeling that by marrying the heiress
of the York line he would remove all rival claims; and it never
seems to have occurred to any possible rival or other person that a
marriage with one of the other York princesses would give any right as
against Henry and Elizabeth, whereas of course on the abeyance theory
any or all of Elizabeth's sisters had an equal right to the throne.

(2) On the death of Edward VI according to Mr.
Round's view the Crown should have been in abeyance between Mary and
Elizabeth. In fact the succession was then regulated by Henry
VIII's will, which by express statute for that purpose had been given
the force of law; but the real strength of Mary's position depended not
on her statutory title but on the universal feeling that as the elder
daughter she had by the common law and custom of England a natural
right to succeed. If there had been any idea abroad that her
title was merely statutory and that by the ordinary law Elizabeth had
equal rights with Mary this would have been a most powerful weapon in
the hands of the Protestant opposition and Wyatt's rising would have
been much more dangerous than it actually was.

(3) On Elizabeth's death again the Crown
should, on Mr. Round's theory, have gone into abeyance between the
descendants of Henry VII's two daughters and James I was only one among
several co-heirs with no greater claim than any or others. By
statute law, as Mr. Round points out, James was not heir to the
throne at all, since Henry VIII's will which had been given
statutory force by Act of Parliament completely excluded
the line of his elder sister, Margaret of Scotland. The fact that
the country unanimously and without hesitation disregarded the
technical legal position as being a violation of the common law and of
natural right, and accepted James as the undoubted heir is the
strongest possible proof that the theory that the Crown goes into
abeyance between daughters like a peerage was unknown and that the
Common law and the usage of England recognised the right of the elder
daughter and her line as against other daughters in the same way as
that of an elder son over younger sons.[Note: The technical flaw in James's title was removed by
Act of Parliament 1 James I cap.l.]

It may be added here that obviously the right of Mary Queen of
Scots was precisely the same as that of her son. If he was
only one of several co-heirs she also was only a co-heiress. But
she was universally admitted to be by inheritance the sole heiress
after Elizabeth; the discussions as to the succession during
Elizabeth's reign turned not on any doubt as to her position as natural
heir but on the question whether her right by inheritance or the
statutory title of the Grey family under Henry VIII's will should
prevail. And yet the fact that she being a Catholic was heir
presumptive was for nearly 30 years the great political difficulty in
the way of English statesmen and the English nation. If
there had been any plausible pretext for maintaining in law she was not
the sole
heir but merely one of several co-heirs with equal rights, this have
been a point of the utmost importance and value to the Protestant
interest. It would also have been a very welcome discovery
to Philip of Spain, whose standing difficulty in dealing with Elizabeth
was that to dethrone her meant replacing her by Mary and thereby
bringing England under the influence of Mary's French
connections. The fact that in these circumstances there was never
any suggestion that the Crown did not descend to an elder daughter in
the same way as to an elder son is clear evidence that abeyance of the
Crown as between daughters was entirely alien to English law and usage.

(4) The position in 1688 also deserves
consideration from this point of view. If James II had had no son
there would on Mr. Round's theory have been an abeyance at his death
between his daughters Mary and Anne. And according to the
official whig view of the Revolution, viz. that James had abdicated and
the Prince of Wales was supposititious, this abeyance would actually
have occurred. As is well known the Revolutionary settlement
conferred the Crown on William and Mary, William being third and Mary
first in the line of succession, and recognised Anne as heir
presumptive. No idea of an abeyance was ever suggested, although
it might have been very useful to some at any rate of the leaders to
argue that Mary and Anne having equal rights it was for the nation to
choose between them.

(b) Common Law.

The accepted legal authorities appear to have no doubt that the law of
succession to the throne is not the same as the law of succession to
peerages. Blackstone says (Commentaries I p. 193 ff):

"As to the particular mode of
inheritance, it in general corresponds
with the feudal path of descents chalked out by the Common law in the
succession of landed estates, but with one or two material exceptions
..... Among the females the Crown descends by right of
primogeniture to the eldest daughter only and her issue; and not, as in
common inheritances, to all the daughters at once; the evident
necessity of a sole succession to the throne having occasioned the
royal law of descents to depart from the common law in this respect."

This necessarily follows from the well established rule of common
law
that "the King never dies" or as it is sometimes expressed "by the law
of England there is no interregnum". See as to this Calvin's
case, (Coke Rep. Part VII 10b), and Co. Inst. Part III. 7. It is
obvious that under this rule there must always be a next heir ready to
succeed immediately on a demise of the Crown, and consequently that
anything in the nature of an abeyance or equality between co-heiresses
is impossible, since in that case there would necessarily be an
interregnum, even though a short one, until it was settled which
co-heiress was to succeed.

It is equally obvious that if daughters are not to be equal the
elder
sister or her line must come before the younger, this being in the
circumstances the only reasonable and practicable rule of succession.

(c) Statute Law.

The foregoing considerations seem sufficient in themselves to
refute Mr. Round's suggestion that the succession to the throne must
follow the law of succession to peerages. But the succession of
females in order of seniority has been expressly recognised by statute
law. One of Henry VIII's Acts of Succession (25 Hen.VIII cap.12)
entails the Crown on the heirs male of the King's body; in default of
sons on his daughter Elizabeth (Mary being excluded as illegitimate);
to Elizabeth's heirs of the body, "and so on from issue female to issue
female and the heirs of their bodies by course of inheritance according
to their ages as the Crown of England hath been accustomed and ought to
go in case where there be heirs female of the same". Similarly the Act
I James I cap. 1, sets out that King James being lineally descended of
the body of Lady Margaret eldest daughter of Henry VII by his wife
Elizabeth eldest daughter of Edward IV, the said Lady Margaret being
eldest sister of Henry VIII, immediately on the death of Queen
Elizabeth "the crown did by inherent birthright and lawful and
undoubted succession descend and come to him as being lineally justly
and lawfully next and sole heir of the Blood Royal of this Realm".

These two statutes contain a clear declaration of the law with
regard
to the succession of females to the Crown, and put it beyond doubt that
the daughters of a sovereign (and their descendants) succeed in order
of seniority in the same way as males.
Sir John Anderson.

I think you will wish to see this
paper. Soon after we came back from Glamis Lord
Stamfordham wrote to me
about this question of the succession, which had been
raised.

I replied to him at some length and you
will see that I said that if there was any real
doubt on the subject the matter might be considered later on by the
Lord Chancellor and the Home Secretary with the Law Officers.

Mr.Eagleston has now gone into the matter at
length and in view of his memorandum any question of consultation with
the Lord Chancellor seems superfluous.
Shall I say so to Lord Stamfordham
and send him a copy of the memorandum?

You will remember that in August last after the birth of Princess
Margaret of York there were various comments in the Press
in regard to the succession to the
Throne. We had some
correspondence then on the subject and in giving you my personal
opinion I said that if there were any real doubt in the matter it
might be considered by Ministers and the Law
officers. We have now, however, gone into the question
fully here and I send you a
memorandum by Mr. Eagleston which I am sure, you will find
interesting.

It bears out
what I wrote to you at the time and in Sir John Anderson's
opinion it is absolutely conclusive.
You will no doubt agree therefore that any farther consultation on
the subject would be superfluous.

Yours very truly.

(signed) H.R. Boyd

The Lord Stamfordham,
G.C.B., G.C.I.E., G.C.V.O.
BUCKINGHAM PALACE

2nd. October, 1930.

My dear Boyd,

Thank you very much for Mr. Eagleston's interesting memorandum on
the question of the Succession to the Throne in the case of daughters.
The King has read it and considers it conclusive and trusts that the
matter may now be considered as strangled at its birth !

Yours very truly,

Stamfordham

H.R. Boyd Esq.,C.V.O., C.B.E.,
Home Office.

Notes on Succession to the Crown

11 July 1936.

Recently the succession to the throne (in the event of the King's
death
without issue and of the Duke of York's death without issue male, but
leaving more than one daughter) has been the subject of discussion in
the Press and elsewhere.

To some extent this may be due to doubts expressed by the author
in Sir
Sidney Lee's biography of King Edward VII, 1925. (Vol.II. p. 33. note)
where it is stated that if daughters alone appear in the succession
"the decision would have to be made between them".

This view is probably based on the legal rule that when a
succession to
land descends on a co-heirship, all members possess an equality of
rights, whereby the land is enjoyed in co-parcenary or a partition is
made. When a barony by writ descends on a co-heirship, all the
heirs having equal rights, and the barony being impartible, it falls
into abeyance, which condition is terminable only by the Grace of the
Crown in favour of any single co-heir, or if the abeyance continues,
until a sole heir remains who succeeds as of right.

The descent of the Crown is fixed by the Act of Succession, 1701,
(12
and 13 Wm. 3. c. 2) which settled the Crown on Sophia Electress of
Hanover and the heirs of her body, being Protestants". Sir
Sidney Lee appeared to think that if heirs female only appeared in the
succession, the rule of law applying to co-heiresses on succession to
land must also be applicable to the Crown.

J. H. Round in his "Peerage and Family History", p.458, (The
Succession to the Crown) published in 1901 makes a stronger
and more logical criticism. He puts
the question "Is there any precedent for construing the
words 'heirs of the body' to mean the senior of
two or more daughters?" The
succession to impartible inheritances is instanced
and particularly that of baronies, where the rights of co-heirs
being equal the intervention of the Crown becomes
necessary to make a choice.

The successions here after examined are reviewed and it is
pointed out
that except in the instance of James I there has been no succession to
the elder daughter where the choice was deliberately made free
from extraneous factors. He instances also
the succession to the Lord Great Chamberlainship (as settled by the
decision of 1781) to be a co-heirship, without
elder daughter preference. On this ground he
traverses the correctness of the Lucas Barony Patent and
Act. He ends by claiming that, whatever
may have been the opinion generally held in the reigns reviewed, the
future must be decided on the strict legal interpretation of
descent to "heirs of the body" based on the canons of descent of
land.

His conclusion is that an explanatory or declaratory Act is
necessary.

This was written before the House of Lords declared the Lucas
patent
valid in 1907, (treating the Chamberlainship as an office
sui generis (although the decision of the Chamber-lainship claim of
1902 substantially followed that of 1781)) following the proved descent
to the elder daughter in the Offices of Steward, Marshal and Constable.
Nor was the examination of material disclosed in the Norfolk
(1906) and Oxford (1915) Earldom claims then open to
inquirers of 1901, and consequently he misses the significance of the
elder daughter descent in the Palatinate Earldoms of
Chester, and of Pembroke.

Finally he passes over the declaratory clauses in two Acts Passed
in
the reign of Henry VIII and subsequently examined herein.

Acts of succession detailing descent of Female heirs.

Acts of Succession passed during the reign of King Henry VIII
must necessarily be read with full regard to the religious
difficulties of the times and the doubts cast upon
the validity of some of the King's
marriages and consequently on the legitimacy of his children. The first
of these Acts, 25 Hen. VIII. c. 22 (1533)
bastardised Princess Mary, sole child of Katherine of Aragon by
making the marriage illegal. Anne Boleyn's
marriage is made legal and the Act settles the succession en the heirs
of the King by her and in default of such issue on the King's right
heirs.

The Act contains a sub-section which deals with the descent of
females
and definitely declares the law on the subject. It is as follows:-

(iv) at end... "and for default of such
sens of your body begotten and of the heirs of the several bodies of
every such sons lawfully begotten, that then the
said Imperial Crown.... shall be to the issue female ... first to the
eldest Issue Female end to the heirs of her body lawfully begotten, and
for default of such issue then to the second Issue Female and to the
heirs of her body lawfully begotten and so from Issue Female to Issue
Female and to the heirs of their bodies one after another .... by
course of inheritance according to their ages as the Crown of England
hath been accustomed and ought to go in cases when there be
heirs-female to the same", (stats. of the Realm. Vol.3. (p.475)).

By the Act 28 Hen. VIII. c.7. the two Acts 26 Hen. VIII. c. 22
(Succession) and 26 Hen. VIII. c. 2 (Taking of Oaths) are
repealed. Princess Elizabeth joins Princess Mary in illegitimacy
and the succession is fixed in the children of Jane Seymour the third
wife, Anne Boleyn having been executed. But s. 8 of the 28 Hen. VIII.
c.7. practically re-enacts s. iv. of the Act 86 Hen. VIII. c. 22 and so
again the course of succession for female heirs is clearly
indicated, a. II of the Act 28 Hen.VIII. c.7. gives power to the
King in the event of failure of issue to limit the Crown by Letters
Patent or by will as he pleases. Finally by the Act 35 Hen. VIII.
c. 1. the succession is fixed by Prince Edward, Princess Mary and
Princess Elizabeth and their issue in turn. [Note p. 4: In detailing the succession the term "heirs of the
body" only is used.
Since the "Female Issue" seniority had been so clearly indicated in two
Acts passed less than ten years previously it was evidently thought
that repetition was unnecessary. It cannot be suggested that the
draughtsmen of the day were unacquainted with the earlier Acts, or that
the legal view of their heirship succession had changed in so short a
time.]

Failing heirs of his body the King is further empowered by section 6.
to declare by Letters Patent or will that the Crown shall go to such
person or persons in remainder or reversion as he may choose.

King Edward VI. succeeded by virtue of the Act of 35 Hen. VIII.
c.1.
(and the Royal will), which together became effective law on the day
King Henry VIII died. King Edward VI. just before his death, in
violation of the Act 35 Hen. VIII. c. 1. nominated the Lady Jane Grey
as his successor. Within a few days the Crown was assumed
by Queen Mary and Lady Jane Grey was executed. On the death of
Queen Mary, Queen Elizabeth succeeded also by virtue of the Act 35 Hen.
VIII. c. 1. Queen Elizabeth's first action on assuming the Crown
was to procure an Act recognising herself as the legal Queen and
confirming the limitations in the Act of 35 Hen.VIII. c. 1. (See 1
Eliz. c. 3) The expression "heirs of the body" (without elaboration) is
used. (See the note on previous page to 35 Hen.VIII).

An attempt was made during the last hours of Queen Elizabeth to
persuade her to nominate a successor, but apparently she refused to do
anything definite. (See Cambridge Modern History, Vol. 3. pp. 359 et
seq. ) Arrangements had already been made by her Ministers that
James VI of Scotland should succeed her, and he was immediately
proclaimed, in spite of the fact that King Henry VIII's will (made
under the Act 35 Hen. VIII. c. 1. and confirmed by the Act 1 Eliz. c.
3) had nominated (in the event that heirs of his body failed) the heirs
of Mary, Duchess of Suffolk, his younger sister. Had no
disposition been made by Henry VIII's will, then on the death of Queen
Elizabeth, unmarried the heirship of the Crown passed to James VI of
Scotland as the heir of Margaret, wife of James IV of Scotland, elder
daughter of Henry VII and elder sister of Henry VIII. In the
succession were James VI of Scotland, heir of the elder daughter of
Henry VII, and William Seymour, heir of Mary, Duchess of Suffolk, the
younger daughter, whose heirship had been favoured by the will of Henry
VIII.

James VI succeeded as James I of England in defiance of the Act
35 Hen.
VIII c. 1. which was still on the Statute Book. This was rectified by
the first Act of the new reign - 1 Jac. c. 1.

After detailing the new King's descent from "Lady Margaret eldest
daughter of King Henry VII and eldest sister of King Henry VIII" the
Act declares that immediately on the death of Queen Elizabeth the
Imperial Crown "did by inherent right and lawful and undoubted
succession descend and come to your Most Excellent Majestie as being
lineally, justly and lawfully next and sole heir of the blood royal of
this realm".

Very definitely this is a recognition of the right of the eldest
co-heir to be "sole heir".

It may be that the Notables thought James was the better man of
the two
co-heirs; but the fact remains that he was the senior co-heir and
declared King as such, in spite of the preference expressed in King
Henry VIII's will for the Junior co-heirship.

In the year 1629 Coke published first his Coke upon
Littleton and there dealing (Of Parceners 165 a. ) with Partition he
observes:

"But the dignity of the Crowne of
England is without all question descendible to the eldest daughter
alone, and to her posterity, and so it hath been declared by Act of
Parliament. For regnum non est divisible".

Coke's reference is given; and is 35 Hen. VIII. c. 1. Coke was
born in the year 1552 and all these Acts of Succession and disputes as
to the true devolution of the Crown must have been well in his mind.

Coke also speaks of impartibility. Up to his time the Crown had
been impartible. Question might have been made of the position of
Philip of Spain, who on his marriage with Queen Mary, was regarded in
some degree as a "joint sovereign". The position, however, is
made clear by the Act 1 Mary s.3. c. 2. which declares Queen Mary the
sole executive power in England. She is described in the Act as a
"sole" Queen.

The succession, after the flight of James II, seems at first
eight to
vary the quality of "impartibility". In fact the rule is actually
confirmed.

William of Orange invaded England at the invitation of the
Notables,
and he and his wife, Princess Mary, elder daughter of James II, were
declared King and Queen of England. This seems at first sight to
indicate something like a Joint holding of the Crown, but the Act of 1
Wm. and Mary , c. 8. settling the succession clearly defines the
position;

By s. VIII it is enacted:

"and that the intire perfect and full
exercise i of the Regal Power of Government he only in and executed by
His Majesty in the names of both their Majesties during their joint
lives and after their deceases...... remain to the heirs of the body of
Her Majesty".

King William is King by right of invitation and conquest. After
his death his wife is next in succession, and then her children not his
are indicated. Should Queen Mary II die without issue then Anne
her younger sister succeeds.[Note p. 7: Failing issue of Anne, the heirs of William himself
were
placed next in succession, thus cutting out the line of Elizabeth
daughter of James I, which was next in the regular succession (if the
Pretenders be excluded). This was remedied after the death of
Queen
Mary by restoring the proper line of succession and fixing the Crown by
the Act of 1701 On the Electress Sophia (mother of George I) who was
the heiress of Elisabeth, Queen of Bohemia, daughter of James I.]

Whatever other factors may have obtained the succession after
King William's death is to follow the course laid down for the Issue
Female in 25 Hen. VIII. c. 22.

When the Act of Settlement of 1701 was drafted those responsible
had
before them the history of succession from the year 1633 until the
accession of King William III in 1688. The Crown, clearly, had always
been an impartible inheritance, and when the principle of impartibility
seemed to be in question special provisions had been made (Philip and
Mary I - William III and Mary II). Coke's view of the Law (first
published in 1628) must have been well known; and his authority
was high. The declaratory clause of 25 Hen. VIII. c. 22 repeated in 28
Hen. VIII. c.7 must have been discussed and appreciated. If this
be accepted (especially having regard to the succession of Mary the
elder sister in preference to Elizabeth the younger, and the choice of
James I as the elder co-heir in preference to King VIII's
nomination by will of the younger co-heir) it is understandable that
when the expression "heirs of the body" was used in reference to the
Crown, the course of succession would be clearly and sufficiently
indicated by custom and precedent, and that, therefore, there was no
need of enlarge-ment, any more than when the Acts 28 Hen. VIII and 25
Hen. VIII were drafted. (see the Note on p. 4 supra).
.
If it be argued, on the contrary, that the illustrations cited were not
of successions where a free choice (from the nature of the cases) was
possible; and that other and over-riding factors of expediency
which had nothing to do with heirship decided the choice made, then it
is open only to proceed by analogy. (Since no exact parallel can
exist qua the Crown, precedents must be sought in a lesser degree, and
the descent of other impartible Offices of Honour examined). Such are
the Honours and Offices of Chamberlain, Marshal, Steward, and
Constable, the Earldoms Palatine, such as those of Chester and
Pembroke, or the holders of those castles regarded as capital, which
were the principal seats of Earldoms and Baronies (caput baroniae).

The descent of these offices and honours was exhaustively
discussed in the Lord Great Chamberlain Case, 1902, in the Earldom of
Norfolk claim, 1906, in the Barony of Lucas claim, 1907, and in the
Earldom of Oxford claim in 1912. The decision in the Earldom of
Norfolk claim was solely based on the illegality of a surrender of 1312
and in that of the Earldom of Oxford on an Act of Parliament which
altered the limitation of the Earldom in 1392 from heirs general to
that of heirs male. The Lord Great Chamberlain decision will be
discussed later. The Lucas claim, which had the advantage of previous
research for the Lord Great Chamberlain and the Norfolk Claims, and
some new material, may reasonably be accepted as a sound source of
information on the peculiar descents requiring examination.

The letters patent (and the Act) of 1665 which create the Barony
of
Lucas contain inter alia the wording following:

" .... and to grant that shee shall
hold the sayd Barronie, honour, title and dignity to her and the Heires
Male of her body begotten by the sayd Earle. And for want of such
issue, to the heires of her body by the sayd Earle begotten. And
his Majestie hath by his sayd Letters Pattent declared his will
pleasure and intention to bee, that if at any time, or tymes after the
death of the sayd Mary, Countess of Kent, and default of issue male of
her body by the sayd Earle begotten, there shall bee more persons than
one who shall bee co-heires of her body by the sayd Earle
begotten. Whereby the King's Majestie his heires or successors
might declare which of them hee pleases to have and enjoy the sayd
Honour, title and dignity or might hold the same in suspence, or
extinguish the same at his, and their pleasures. Then
nevertheless the sayd Honour title, and dignity shall not be held,in
suspence, or extinguished. But shall goe to and be held and
enjoyed from tyme to tyme by such of the sayd co-heires as by Course of
descent at the Common Law should be inheritable to other intire and
indivissible inheritances as namely an Office of Honour and publique
trust, or a castle for the necessary defence of the. Realme or the like
in case any such inheritance was given or llmitted to the said Mary,
and the heirs of her body by the sayd Earle begotten. It being
(as by the sayd Letters Pattents it is further declared) his Majestie's
express intent, and meaning that the said honour title and dignity
shall and may remain, and bee from tyme to tyme to the said Mary,
Countesse of Kent, and the heires of her body by the sayd Earle
begotten in that course of Succession, as such other intire
Inheritances as aforesaid should descend by the Common Law of the
Realme in case the same had been given or limitted to the said Mary,
Countesse of Kent, and such heires of her body as aforesayd. Bee
it further enacte by the Authority aforesaid that the said Declarative
clause in the said Letters Patents shall be and is hereby ratified and
confirmed."

The Barony remained entire and was enjoyed in succession by the
heirs
of Mary, Countess of Kent, although always obscured by higher titles
until eventually it emerged from overshadow and devolved on Auberon
Thomas Herbert (the senior co-heir) who in 1907 petitioned the Crown
for the issue to him of a writ of summons.
The Petition was referred to the House of Lords, and on the 4th
of
June, 1907, the Committee for Privileges unanimously resolved that the
Claimant had made out his claim.
In order to establish his claim the claimant produced documents of
public and private record to show that Offices of Honour and Public
Trust had, before the passing of the Act of 1663, been regarded as
impartible inheritance, and that the senior co-heir had succeeded to
the office whenever a condition of co-heirship occurred.
Reference was made to the Offices of Steward, Marshal, Constable
and
Chamberlain, although the latter was, as a result of decisions in 1791
and 1902 adjudged to be an heirship of a peculiar kind to which the
general rule stated by Coke was held not to apply.

As to the form of words "a castle for the necessary defence of
the
realm", reference was made to Coke upon Littleton wherein alone these
words are known. The lawyers who drafted the Lucas Letters Patent
apparently adopted Coke's own wording. This seems the more
probable since the first edition of Coke upon Littleton had appeared in
1628, and the Lucas Patent was drafted (in 1663) at a time when Lord
Coke's authority was at its highest.

It is of interest also to trace the descent of two of the English
Palatinate Earldoms, great offices of honour with a jurisdiction (in
their own territories) almost Royal. These are the Earldom of Chester
and the Earldom of Pembroke, the former a bastion on the Northern
Marches of Vales and the latter a coastal enclave in South Wales used
as an important half-way house on the shortest convenient sea journey
between England and Ireland.

In 1237 John le Scot, Earl of Chester, had died seised of the
dignity
of Earl of Chester and also of the territorial palatinate
(comitatus). Hie heirs were the two daughters of his eldest
sister and his two younger sisters. William de Fors, heir to the
Earldom of Albemarle, who had married the elder daughter of the eldest
sister, made in her right a double claim (a) to be Earl, (b) to the
whole comitatus, on the ground that it was a palatinate and, therefore,
exempt from the general rule of partition. His opponents, the
other claimants, did not deny his right to be Earl but claimed that the
lands were partible. The dignity of Earl was never in
dispute. In the end the Earldom, with its lands, was annexed to
the Crown, probably because otherwise the greater part of the lands
would fall to be allotted in partition among heirs who were married to
Scottish nobles whose feudal allegiance to an English King, put at the
highest, would be divided. (See Knyghton's Chronicle. c.XXXV. )

It is necessary to refer to this case in detail because Coke, in
his
section on partition (Coke upon Littleton. Of Parceners, 165 a. ) seems
to have been under the impression that the actual dignity of Earl
became part of the co-heirship, but when the authorities he quotes are
examined it is seen that he had not clearly appreciated the ratio
decidendi. Cruise disagrees with Coke's statement. (See his
"Dignities", 2nd Edition 1823, pp.181,2. ) so also does Round,
strongly. (See his Peerage and Pedigree, Vol.I, pp.131 et seq.
). In the case cited by Coke, William de Forz is spoken of as one
"who has the aesnescia and ought to be Earl as all the parties
admit". The term "Aesnescia", "esnecia", or "droit
d'ainesse" is monkish legal jargon for the right of the elder daughter,
(see Lucas Claimant's Book of Documents, No. 2. pp. 77 and 79), a right
of succession which in this Chester claim is never questioned by any of
the parties. It was in fact very much debated both in the Lord
Great Chamberlain claim of 1902 and in the Earldom of Norfolk claim of
1906. In the former it was not deemed applicable since the office
was held to be of a peculiar nature with succession rights sui
generis. In the Earldom of Norfolk claim decision turned solely
on the illegality of the Earldom surrender in 1512.

The details concerning Coke's authorities on this question were
not
known at the time the above claims were heard, but were subsequently
closely examined and, in view of later research, re-stated in the Case
of the Lucas claimant in 1907. The whole question is
minutely treated by J.E. Bound (Peerage and Pedigree, Vol.1.) in his
chapter (above cited) termed "The Muddle of the Law".

As to the course of descent of the Earldom of Pembroke the South
Wales
palatinate, there is no dispute. Aymer de Valence, Earl of
Pembroke, died without issue in 1324, leaving two sisters, Isabel the
elder, and Joan the younger. Isabel a married John, Lord
Hastings, leaving a son, John II, Lord Hastings; who had a son and
heir, Laurence, Lord Hastings III. In 1339 Letters Patent were issued
to Laurence, Lord Hastings.

The material parts translated (vide Speeches delivered on the
claim to
the Earldom of Norfolk, 1906, p. 55. ) are as follows:

"Whereas the inheritance of Adomar de
Valence, Earl Palatine, as it is called, of Pembroke...... has devolved
on his sisters to be divided proportionately between them and their
heirs, inasmuch as it appears that the aforesaid Laurence, who
succeeded the said Adomar in a part of the inheritance, is descended
from the elder sister of the said Adomar and as on the declaration of
skilled persons whom we have consulted hereupon the prerogative of the
name and honour is due to him we consider it Just and due that the said
Laurence having his claim from the elder sister do assume and hold the
name of Pembroke...... the said Laurence to have and hold the
prerogative and honour of a Palatine Earl in the lands which he holds
of the inheritance of the said Adomar."

There is no room for doubt here. Skilled persons have been
consulted, the law has been clearly stated in response to a specific
inquiry, and the King follows it, thus definitely accepting this jus
esneciae. The honour descends of right through the elder
sister.

The next reference of interest is the expression used in the
Lucas
Patent and Act of 1665: "a castle for the necessary defence of the
realm", which is obviously Coke's. (Coke upon Littleton. Of
Parceners. 165 a. ) He states:

"If a castle that is used for the
necessary defence of the realne descend to two or more parceners this
castle might be divided by chambers and roomes, as other houses
be. But yet for that it is pro bono publico et pro defensione
regni it shall not be divided; for as one saith propter jus
gladii dividi not potest, and another saith pur le droit del espee que
ne souffre division en aventure que la force del realme ne defaille par
taunt. But castles of habitation for private use that are not for
the necessary defence of the realme ought to be parted between
co-parceners as well as other houses. "

Since here again Coke's conclusions do not appear to be
completely
borne out by the authorities he cites the latter must be
examined. The words "propter jus gladii" are evidently taken from
Bracton (who died about 1280) writing of co-heirship in his "De Legibus
Anglise" (Ed. 1569 f76. Rolls Series, Vol.I. p. 604 for Translation).

"But concerning this which is said that
in the case of a military fief the chief messuages come into division
and are divided between the co-heirs this is true, unless the chief
messuage be the capital mansion of a county, on account of the right of
the sword, which cannot be divided or the capital mansion of a barony,
a castle, or other edifice, and this for reason lest the capital
mansion should be thus divided into several shares and the severed
rights of counties and baronies should be diminished to nothing whereby
the realm would fall, which is said to be made up of counties and
baronies".

Similar statements are made by Britton, (Ed. 1640 [Wingate] c.72;
ed. 1866 Nichols, Vol. 2. p. 74. f. 186 b.) and Fleta
(ed. 1647 [Selden] f.313) all of whom were a little later than
Bracton.

J.H. Round holds the view (see his Peerage and Pedigree, Vol. I.
p.115) that Coke's expression gives undue weight to
a "castle" (whether for the defence of the realm or not) and states
that what Bracton had in mind as the
capital messuage of a comitatus, as exemplified by "the Earl's
sword". This expression it may be noted appears in most of the Earldom
charters of creation which detail a girding with the "sword",
that is the symbolic "sword" of the Earl. Bracton certainly
stresses the capital mansion of Earldom and barony rather than a castle.

But if Coke's expression "castle for the necessary defence of the
realm" be regarded as a condensed summary only of Bracton's
observations rather than as a direct extract, is he far wrong? The
capital mansion of an earldom (or of a barony) was undoubtedly the
principal fortified centre (castle) of the Earldom lands. Bracton
does use the words "castle or other edifice" and then goes on to say
that if these be divided into shares, then (coloquially speaking) a
general break-up would result and the realm would flail".
So regarded Coke's crystallised expression "a castle for the necessary
defence of the realm" seems net unjustified. In any event Bracton
definitely lays it down that the capital mansion of a county or of a
barony, a castle or other edifice so situated must not be partitioned,
since if partition occurred the realm would be without the support of
these "whole" counties and baronies of which it is made up; and
the fortified centres of which were obviously its basic defence.

Such special capita, castles, or edifices of a like nature,
descend
undivided, to the eldest co-heir.

The descent of the offices of Steward, Constable, Marshal, and
Chamberlain are reviewed in the Case of the Lucas claimant, 1907, and
the relative documents are to be found in his Books of Documents. (Book
No. 2). The successions to these offices were also
exhaustively discussed in the Lord Great Chamberlain Claims of 1781 and
1902. The successions to the Offices of Steward and Marshal are
not in dispute, the right of the elder co-heir, so long as the offices
existed as heirships, being admitted as a matter of course.

The tenure of the office of Constable stretches to a later date
and a
closer examination may be of value.

In 1509 the office of Constable was claimed by Edward, 3rd Duke
of
Buckingham (making his title through Humphrey, the 1st Duke of
Buckingham, only child and heir of Anne, wife of Edmund, Earl of
Stafford). The petition was referred by King Henry VIII to the
House of Lords, and was determined in 1515 after a full discussion and
report by all the Judges. The claim is reported in Dyer's Reports
(3 Dyer 285 b. Reprinted 73 Eng. Reps. 640); Keilway's Reports,
p.170, and in Jenkins's Eight Centuries of Reports (6th Century case
14).

Dyer's Reports were published in 1585. He had died in 1562. Three
editions of Dyer appeared before the first of Keilwey, which was
not issued until 1602, twenty one years after his death. The
records of the day show that Dyer was very highly regarded both as a
Judge and as a reporter. In Dyer the case headnote is as follows:

"If a man holds manors of the King by
service of being Constable of England, it is a good tenure in Grand
Serjeantry. If he die, leaving two daughters while sole they may
exercise it by deputy, and after the marriage of the eldest, her
husband alone may exercise it, and the youngest also marrying and the
crown devolving upon her husband who makes partition still the husband
of the eldest must do the entire service; but the King may refuse the
services at his pleasure".

"And the second question was when the
manors (by tenure of which the Office of Constable was stated to be
held) descended to women how they could exercise the Office, and as to
that question the Judge seemed clear that they could make their
sufficient deputy do the office for them".

It may here be noted that the Crown had accepted from earlier
male
holders of the Office deputies duly nominated to act in the life time
of the holder. (Barony of Lucas claim, 1907, Book No. 2. pp. 77,
79 and 81). Absence, sickness, or the appearance of unmarried
heiresses could not be allowed to prevent the discharge of official
duties, hence a deputy to set.

The Buckingham claim was referred to in the Lord Great
Chamberlain case
of 1625 where Doddridge J. observes:

"The Office of High Constable did
descend by many descents in the blood of the Bohuns, Earls of Hereford
and Essex (the case in 6 H. 8. ) if that descend to daughters they may
make their assugnees and if the eldest be married her husband shall
execute the office. (Sir Wm. Jones's Reports, p. 124. 96 Eng. Reps. at
p. 96).

Three years later, 1628, the first edition of Coke upon Littleton
was
published; and Coke refers to the case (Of Parceners. 166 A. ) as
follows:

"for if a man hold a manor of the King
to be High Constable of England, and dye having issue two daughters,
the eldest taketh husband he shall execute the office solely, and
before marriage it shall be executed by some sufficient Deputy and all
this was resolved by all the Judges of England in the case of the Duke
of Buckingham".

"It was resolved first that the said
tenure is a tenure by grand serjeantry. Secondly that the
daughters might execute the said office by deputy. Thirdly after the
marriage of the elder sister, her husband alone might exercise it."

In fact the King did not call for the service of the Constable.
The Duke of Buckingham was executed and attainted in 1521, when the
office reverted to the Crown. It has never since been granted in fee.

J. H. Round in his "Peerage and Pedigree" (Vol. I. pp. 147 et
seq)
takes the view that the Judges were wrong in the Buckingham claim in
assuming that the Constableship was held in right of "the manor"
referred to. He regarded the office as held by Grand Serjeantry,
unattached to land.

As to the Lord Great Chamberlainship, it will be sufficient to
give a
summary of the decisions on the claim, since the arguments of Counsel,
the Case of 1902, and the Documentary proofs ore all to be found in the
Lord Great Chamberlain speeches of Counsel 1902, and the Books of
Documents lodged for the purposes of the Claim. (See also, for
the 1781 claim, House of Lords Journals, 25 May, 1781).

Up to the reign of Henry VIII this office had followed the usual
course
of descent, only heirs male appearing in the succession. It was
then the subject of an award by the King which was held subsequently to
have passed it (without specific mention but along with other
"offices") to the heir male. This award received contemporary
statutory confirmation.

The nature of the descent may be summarised as follows:

It is an hereditary office in gross of an anomalous nature,
partaking of the character of a dignity, and at the same time
comprehending in some of its attributes the character of an office of
profit.

Its course of succession has followed no definite rule,
having
been the subject of arbitrary interference by the Crown, an heir male
being preferred to heirs-general by an Award of King Henry VIII.

It has been held subject to the doctrine of possessio
fratris,
and to the operation of the Statutes of Limitations, and now vests in
coheirs jointly who appoint a Deputy by agreement among
themselves; and presumably in the absence of an agreement the
Crown would be entitled to resume the original Grant; and to
appoint pro hac vice even a stranger in blood to the coheirship. (Note;
A few years ago the Crown sent a ease for opinion on its rights
of appointment to the then Law Officers and myself. The opinion
is I believe, with the Clerk of the Crown).

The House of Lords resolved unanimously that the Claimant in the Lucas
Case, 1907, had made out his claim.

The claimant, in order to establish his case, was required to
prove
that;

There were, or had been, in existence certain impartible
inheritances.

Certain offices of Honour and castles for the necessary
defence
of the realm were impartible inheritances. and

that such, impartible inheritances descended as of right to the
eldest co-heiress.

He adduced as instances of impartible inheritances the offices of
Steward, Constable, and Marshal (distinguishing that of Chamberlain)
and relied on Coke, Dyer and Bracton to prove that castles regarded as
capita baroniarum were also impartible inheritances and descended to
the eldest co-heiress.

The claimant also drew attention to the acceptance by the Courts
of
Chancery of this interpretation, instancing as follows:

"The Act 15 Chas. II. No. 15 in
addition to confirming the declarative clause of the Letters Patent
granting the Barony of Lucas fixed the descent of the Manor of
Crudwell-cum-Escott, a portion of the property settled on the marriage
of Amabell, 1st Baroness Lucas 'in such manner as a Castle for the
necessary defence of the realme or other intire inheritance not
partible or divisible among co-heirs' i.e. a descent to the senior
co-heir".

Since the year 1852 there have been frequent copyhold
enfranchisements
of the settled estates. Some of the land has been sold to Railway
Companies. Frequent application to the Chancery Courts as to the
disposal of these moneys has been necessary; and on every
occasion the Courts have adopted the view that when a condition of
co-heirship arises in the inheritance settled under and by virtue of
the Act 15 Chas. II. c. XV. (163) and a later Art (relating to Exchange
of Estates) 50. Geo. III. c. CXCVII. no partition follows but the
senior co-heir succeeds to the entire estate.

When the Letters Patent conferring the dignity of the Barony of Lucas
were drafted by the Advisers to the Crown in 1663 there was on record
no instance in which an office
of Honour in which co-heirship had arisen, and which had not been
arbitrarily resumed by the Crown, the office wag regarded as impartible
and had always been allowed, as of right, to the senior co-heiress.

The only surviving ancient office of Honour held in heirship is that of
the Lord Great Chamberlainship ans as already noted decisions of 1781
and 1902 have been recognised it as anomalous, and not following the
course of descent usual in other offices of honour. In 1907, with
the facts of the Lord Great Chamberlain cases of 1781 and 1902 well
before them the House of Lords accepted unanimously the Lucas claim.

It may be a argued that all this decision implies is that the
House of
Lords were satisfied that the intention of the Letters Patent was to
prevent abeyance and, therefore, the only possible alternative was
somehow to indicate the senior co-heiress. The courses of descent
examined, it might be said, were contradictory, and, therefore, the
resolution did not in terms declare that these Offices carried descents
with a senior co-heiress privilege.

On the other hand, there is a specific reference to Offices of
Honour
as impartible inheritances, and to the words "castle for the necessary
defence of the realm or the like", and it may, therefore, be presumed
that the documentary evidence produced to indicate such courses of
descent was accepted as sufficient proof, and the Lord Great
Chamberlainship regarded as an office sui generis, which did not affect
the general rule.

Finally I give the conclusions which may reasonably be assumed
from the evidence examined.

The Crown of England is an impartible inheritance sui generis,
and while it is held today by the Statutory Title of the Succession Act
of 1701 (12 and 13 Wm. III. c. 2) the limitation to "heirs of the body"
must be construed not simply as an interest in land, but
also with reference to the Office, and its course of descent as
statutorily declared, and as followed throughout our history, except in
revolutionary periods.

Such Statutory declarations as are known assign a privileged
position to the senior co-heiress as of right.

When the descents of Palatine Earldoms, of the Great offices of
State (other than the Chamberlainship which has always been treated sui
generis) and of capita baroniarum are considered it is clear that the
privileged position of the eldest co-heiress has been admitted and that
she has succeeded as of right.

(Sgd) GEOFFREY ELLIS.
Temple. 11 July 1936.
Succession to the Crown.

Note by Parliamentary Counsel on the interpretation of the
relevant
Statutes.

In view of the exhaustive treatment of this subject in the
memoranda
prepared by Mr. Eagleston and by Sir Geoffrey Ellis I confine this note
to a few observations upon what I conceive to be the relevant statutes,
and the rules of construction by which they should be interpreted.

It seems to me that Dr. Round's argument is based upon a fallacy
which
is ingenuously stated in terms towards the end of his article thus
-"What we have to deal with is ... the interpretation in a statute
of the words 'heirs of her body' in a sense entirely different from
that in which (it will not be denied) they are invariably construed."
Such saltatory methods of interpretation of a statute are not justified
by any known rule of construction and the suggestion that the same
words in different statutes must invariably be construed in the same
way must certainly be denied; for it offends against the fundamental
rule, said to have been first formulated by Sir Thomas More, "that
words cannot be construed effectively without reference to their
context" (cf. dictum of Lord Blackburn in Edinburgh Street Tramways
Company v. Torbain (1877 3 App. Cas.68) - "words used with reference to
one set of circumstances may convey an intention quite different from
what the self-same set of words used in reference to another set of
circumstances would or might have produced".)

In my view the proper way to construe the expression "heirs of
her
body" in section one of the Act of Settlement is by "giving them their
ordinary meaning in the English language as applied to such a
subject-matter as the Act was dealing with (per Esher M.R. in Clerical
Assurance Co. v. Carter (1889 22
Q.B.D.448)). The subject-matter with
which the Act of Settlement dealt was not the devolution of
property or of peerages, but the succession to the Crown, and the
important thing to my mind is to ascertain how these words would have
been construed in relation to the succession to the Crown the time when
the Act of Settlement was passed (Sharp v. Wakefield 1888 2 Q.B.D. 241
Esher M.R.) for as Lord Blackburn said in Young v. Mayor of
Leamington (1883 8 App.Cas.526) the courts "ought in general in
construing an Act of Parliament to assume that the legislature knows
the existing state of the law".

In order to ascertain what was, at the time when the Act of
Settlement
was passed, regarded as the state of the law relating to the succession
to the Crown in the female line, the first thing to do is to look at
the Act itself as a whole, i.e. to construe the words in question "ex
visceribus actus" (Coke in the Lincoln College case 1595 5 Co.Rep. 59
V.). Now the preamble to the Act of Settlement recites the Bill
of Rights as declaring that the Crown should "be and continue to
William III and Mary during their joint lives and to the survivor of
them and that, after the death of both, it should be and remain to the
heirs of the body of Queen Mary, and for default of such heirs to
Princess Anne of Denmark and the heirs of her body and for default of
such heirs to the heirs of the body of William III." Upon
the assumption that the true legal doctrine is that which had been set
out in 25 Hen.VIII c.22 (cit. infra) such a succession -i.e. to the
first, second and third lines one after the other - would be the
natural one, but it would be entirely incompatible with any doctrine of
co-parcenary in relation to the Crown. There is nothing in the Act of
Settlement or the Bill of Rights to suggest that the succession thereby
enacted was regarded as anything but the natural one.

The next legitimate step in my view is to examine earlier
statutes
dealing with the same subject, viz.:- the succession to the Crown. When
the Bill of Rights was passed the latest previous statute was 1 Jac.l
c.l which recites that James I is "lineally rightfully and lawfully
descended of the body of the most excellent Lady Margaret, eldest
daughter of the most renowned King Henry VII and the high and noble
Princess Queen Elizabeth his wife, eldest daughter of King Edward IV,
the said Lady Margaret being eldest sister of
King Henry Eight (sic) father of the high and mighty princess of famous
memory Elizabeth late Queen of England".

Here too is a statutory declaration consistent with the doctrine
of
primogeniture among females but entirely inconsistent with any view of
co-parcenary in relation to the succession to the
Crown. The series
of Acts dealing with the succession
to the Crown which preceded this Act of James I is the series of the
reign of Henry VIII to which more detailed reference is made in Mr.
Pennington's opinion, and it is of great interest to note that the
first of these Acts namely 25 Hen.VIII c.22 states in terms that the
succession is to go among female issued "one after another by course of
inheritance according to their ages as the Crown of England hath been
accustomed and ought to succeed and go in case where there is heir
female inheritable to the same."

It will be seen therefore that when the words "heirs of her body"
in
section one of the Act of Settlement are construed not by reference to
unwarranted analogies but by reference to what may be called their
own statutory pedigree, Dr. Round's thesis becomes
untenable.

We recently discussed the question what would happen if after a
demise
of the Crown to a daughter of a deceased King a posthumous boy should
be born to him. (The same difficulty would of course arise if
after a demise to any member of the Royal Family, not being the highest
possible in the line of succession, a posthumous child higher in that
line should be
born.)

We agreed that in our view it is not possible to provide for such a
contingency. Happily, such an event has never occurred in the
history of this country, nor so far as I know of any other, and we can
only hope that it will never do so. The doctrine that there can be no
interregnum requires that upon the death or abdication of a sovereign
the Crown should instantly pass to the successor, and I think this must
mean that it should so pass to a living person absolutely. Anything in
the nature of a provisional possession of the Crown seems
to me entirely inconsistent with sound constitutional doctrine.

I understand that it is now under consideration whether it would
be
well to include a question on this point in the case which is being
prepared for the Law Officers as to the succession of the Crown in the
female line. I should have thought it unnecessary to burden the
case with this point but for the fact that my attention has been drawn
to the terms of the Proclamation on the occasion of the accession of
Queen Victoria. I enclose a copy of this document from which you
will see that savings were inserted for "the rights of any issue of His
late Majesty King William
the Fourth which may be born of His late Majesty's Consort".

This seems to me most unfortunate. Leadbitter is unable to trace
in the Privy Council Office any papers showing how this saving came to
be put in, but I imagine it must have been done from some excess of
caution and without proper consideration of its implications. I
do not know what was the age of the widowed Queen when William IV died
in 1837, but she had married him 19 years before, and it was nearly 17
years since her last child had been born to her. It seems likely,
therefore, that the question had no practical importance at that time
and probable that these ill judged savings were not considered with
sufficient care. In view, however, of their presence in that
Proclamation I think it would be well to put the point to the Law
officers in the hope that they will advise that this bad precedent
should not be followed in future
proclamations.

Yours sincerely,
J. Granville Ram

O.F. Dowson, Esq.., C.B.E.,
Home Office.
29th January, 1937.

I have turned over in my mind and have discussed with Ram the
problem
which you put to me over the telephone the other day as having been
raised by Barnes, viz. whether any action is desirable or practicable
in anticipation of the unlikely, but nevertheless possible, contingency
of the death of the present Monarch leaving a child en ventre sa mere,
which child may be a male.

I have just received from Ram a letter dated 28th January, copy
of
which I enclose, together with a copy of the Royal Proclamation of the
20th June, 1837, to which he refers. As this letter puts on
record the course which our discussion took, as well as Ram's views
(with which I agree), I do not think that I need now add
anything. But I should very much like the opportunity of a talk
with you about this matter. The fact that the question of the descent
of the Crown to the eldest of two or more surviving daughters on the
demise of the Sovereign leaving no issue male is being put to the Law
Officers seems to give an opportunity for putting this new problem also
to them; and I think it would be convenient, as Ram suggests, to put
the point in the form of a request for advice on the necessity for
including in any future proclamation the saving words which appeared in
the proclamation of 20th June,
1837. The precedent is
certainly an awkward one, but I agree with Ram's view that it is a bad
precedent - bad that is in the sense that it seems to presuppose an
established principle that the posthumous male child of a deceased
Sovereign would oust the actual successor to the Throne if such child
would have succeeded if he had been born before the demise.

Since dictating the above I have received from Barnes copies of
the
draft Case for the opinion of the Law Officers (and Counsel - Geoffrey
Ellis); and I enclose for your observations one of
the copies of the Case. In view of
the Home Secretary's reply in the House of Commons yesterday to the
Question put by Mr. Mander, the submission to the Law Officers is
no longer a matter of immediate urgency.

(Sgd.) O.F. Dowson

Sir Claud Schuster, G.C.B., C.V.O., K.C.Note:
on Jan 28, 1937, during debates in the House of Commons on the Regency
Bill, Mr. Mander asked whether it was proposed to amend the Act of
Settlement so as to make clear that Princess Elizabeth is the sole Heir
to the Throne and does not share it jointly with her sister on the
analogy of the peerage law of inheritance. Sir John Simon's reply
was that there is no reason to amend the Act of Settlement. The
Government, he said, were advised that there is no doubt that in
present circumstances Princess Elizabeth would succeed to the Throne as
sole Heir.29th January, 1937.

Since I dictated my letter to you this morning I have been
looking at
the Regency Act, 1831 (1 Will. IV, cap.2), and I find in sections 2-6
of that Act the explanation of the presence in the Proclamation of the
20th June, 1837, of the saving for the rights of any posthumous issue
of King William IV. Those words were "That saving was in fact
prescribed by section 2 of that Act", and section 3 specifically
provides for a Regency and for the guardianship of I any such child;
and section 4 declares that such child shall be proclaimed the
"successor entitled to the Crown of these Realms".

This puts a new complexion on the matter so far as I am
concerned, but
perhaps you have already had this Act in mind.

Sir Claud Schuster, G.C.B., C.V.O., K.C. 29th January, 1937.

Dear Ram,

SUCCESSION TO THE THRONE.

I have now received from the Treasury Solicitor copies of the
draft
Case which he has prepared for the opinion of the Law Officers as to
the position in the event of the demise of the present King leaving
daughters but no male issue.

As you know, in view of the answer given by the Home Secretary in
reply
to a Question by Mr. Mander in the House yesterday a submission of this
question to the Law Officers is no longer a matter of immediate
urgency. But I understand that the Home Secretary agrees with our
view that it is desirable that the Case should proceed so that a formal
opinion of the Law Officers can be obtained.

I have not had an opportunity of considering the Case yet, but
from a
rapid glance through it I gather it is not proposed to send the Law
Officers a copy of Eagleston's memorandum of 1930. I think it is
desirable that they should see it!

I am much obliged to you for your letter of yesterday about the
problem
involved in the possibility of a posthumous Heir to the Throne.

I have not yet had an opportunity of speaking to the Home
Secretary
about it, butt I think it is not unlikely that he would agree with the
suggestion that this question should also be put to the Law Officers on
the lines you suggest in your letter.

In view of the provisions of ss.2-5 of the Regency Act, 1851 (1
Will.IV
c.2) which I mentioned to you in the course of our discussion this
afternoon, the presence of the saving words in the proclamation of 20th
June, 1837, is accounted for. But to my mind, I think and to
yours also, there is considerable obscurity as regards the
constitutional principles underlying the procedure contemplated by this
Act for supplanting the reigning Sovereign in the event of the
posthumous birth of a child of the late Sovereign. The problem
before us needs a lot of consideration and it might be useful to
have an informal meeting to discuss the matter, i.e. Schuster, Barnes,
yourself, and myself.

I return your file which has been sent back to me by the Treasury
Solicitor with the draft Case; it is possible that the Treasury
Solicitor may want it back when the Case for the Law Officers is being
finally settled. I have a copy of the relevant documents so we
shall not need your file here.

(Sgd.) C F. DOWSON

J. Granville Ram, Esq., G.B.12th February, 1937.

Dear Barnes,

You will remember that when I saw you two days ago I mentioned in
connection with the posthumous child question in relation to the
succession to the Crown, that provision for meeting such a contingency
had been made in the Regency Act, 1831 (1 Will. IV cap. 2)
ss.2-5. These provisions explain the presence
in the Accession Proclamation of the 20th June, 1837, of the saving for
the rights of any posthumous issue of King William IV (see s.2 of the
Act of 1631). Section 5 specifically provides for regency and for
the guardianship of any such child; and section 4 declares that such
child shall be proclaimed the "successor entitled to the Crown of these
Realms". In the events contemplated by these provisions Queen
Victoria would have come to the Throne on the death of King William IV
and would have remained Queen until the arrival of the posthumous child
of William IV and thereupon the child would be proclaimed Sovereign and
Queen Victoria would then retire from the Throne. In that event,
the machinery of government was to continue as though Queen Victoria
had died. This is a most remarkable solution of all the
difficulties.

I have not yet got from the Home Secretary any decision as to
what is
to be done (if anything) about this posthumous child question; out it
is evident that something must be done because Leadbitter requires
instructions for the purpose of settling the form of the Proclamation
that would hereafter be required in the event of the death of the
present King.

Ram and I had discussed the possibility of including a question
on this
point in the Case for the Law Officers as to the succession of the
Crown in the female line; but after consideration came to the
conclusion that this would not be a very convenient way of dealing with
the matter. Perhaps you would kindly let me know whether you have any
suggestion to make subject to what you think. It seems to me that
the best plan would be to draft a short case for submission to the Law
Officers for their advise as to the form which the Accession
Proclamation should take in the event of the death of the King in
existing circumstances.

Sir Thomas Barnes, C.B.E.
17th February, 1937.

My dear Barnes,

Leadbitter recently showed me a copy of the Proclamation issued
at the
time of Queen Victoria's accession and drew my attention to the fact
that it contained what purported to be express savings for any
posthumous son born to the widow of William IV. This, no doubt,
followed from similar savings which had been inserted in the Regency
Act of 1830.

As you know it is the practice immediately after one accession to
prepare all the necessary documents which will be required urgently
upon the next accession, and therefore Leadbitter is now under the
necessity of preparing an accession Proclamation. He asked me whether I
thought we ought to follow the precedent of 1837. Personally, I think
the answer to this should be, "certainly not". But I think that
whatever the answer, it should be given with the authority of the Law
Officers.

Leadbitter discussed this again with me to-day, and we agreed
that the
best way would probably be to ask you to submit a case for the Law
Officers' opinion. Presumably this will be on the instructions of
the Privy Council Office, but Leadbitter suggested that I should first
write to you in the matter telling you at the same time that he would
be glad to give you any information that you may require. I need
not add that if I can give any assistance I shall be happy to do so.

My own view on the point at issue is that it is one for which it
is
absolutely impossible to provide It seems to me inconsistent with
all sound constitutional doctrine that there should be anything in the
nature of a qualified demise of the Crown. "The King never dies"
, and therefore it seems to me the Crown must pass instantly and
absolutely to the next successor who must be, so it appears to me, "a
life in being". I cannot think that any argument by analogy to the law
of property under which in some circumstances an unborn child may have
an interest, can be sound, Property can be held in trust for an infant,
and in some circumstances for an unborn infant, but I do not see how
the Crown can ever be held in trust at all, nor can a sovereign ever be
"an infant". I am, however, bound to confess that I do not know
what on earth would happen if after the accession of a sovereign a
child were to be born who, if he or she had been born before the
accession, would have had a prior right to the Crown. This might, of
course, happen not only in the event of the posthumous birth of a
Prince after the Crown had passed to a Princess, but also in the event
of a posthumous child in the senior line after the demise of the Crown
to the junior line.

I do not know whether the Law Officers can find any answer to
this
conundrum, but it seems to me that all that is necessary at the moment
is to obtain their direction as to whether the Proclamation now to be
prepared may be allowed to ignore the possibility.

Shortly after receiving your letter of the 12th February on the
posthumous child question I received a letter on the same subject from
Ram. He suggested, as you did, that
it would be sufficient at the moment to draft a short Case to the Law
Officers simply asking for their direction as to whether the
Proclamation now to be prepared may ignore the rights of a posthumous
son. I have considered the matter, and while I agree that a
Case should be submitted to the Law Officers on the posthumous child
question, I do not think that it can be confined to the
single question of the form of the Accession
Proclamation. It seems to me that before
this question can properly be decided it is necessary to ascertain
whether a posthumous son has any rights. If he has no
rights, of course the question does not arise, but if he has
rights, then the question arises as to whether or not it is necessary
in the Proclamation to give notice that the succession is a contingent
succession.
I suggested to Ram, and he agrees, that the questions submitted
to the
Law Officers should be

what are the rights of a posthumous son,
and

if he has any rights whether any express reservation of those
rights should be contained in the Accession Proclamation.

I have now received a letter from Leadbitter asking that the Law
Officers' Opinion on this matter should be obtained, and if you agree,
I will proceed with the preparation and submission of a Case on the
lines which I suggested to Ram.

It seems to me that the Regency Act of 1830 proceeded on the
basis that
the current view as to the law of succession to the Crown was that
Victoria succeeded immediately and her succession was liable to be
defeated by a posthumous child of William IV. I was wondering whether
there were any papers in the Home Office connected with the drafting of
that Act which would throw any light on this matter.

Many thanks for your letter of the 15th instant about the
posthumous
child question and the proposal to consult the Law Officers as to the
form which the Accession Proclamation should take in the event of the
death of the King in existing circumstances. It never occurred to
me for a moment that the main question what are the rights of a
posthumous son could be avoided by asking the Law Officers for their
direction as to the form of Proclamation. It seems to me obvious
that the Law Officers in advising whether the Proclamation should
include a saving for the rights of a posthumous son must necessarily
make up their minds whether a posthumous son would or would not have a
right of succession to the Throne to the exclusion of the female heir
who had in the meantime succeeded to the Throne.

I had accordingly treated the necessity for settling the form of
Proclamation as a convenient and indeed necessary peg on which to hang
the main question since it is necessary that Leadbitter should know in
the near future what form the Proclamation should take. It seems
to me, therefore, that questions (l) and (2) which you suggest in the
eecond paragraph of your letter should be put to the Law Officers.

There are in the Home Office no papers connected with the
drafting of
the Regency Act, 1831. I am getting someone to obtain from the
Record Office such papers as may be in existence.

(sgd.) C. F. Dowson

Sir Thomas Barnes, C.B.E.
MR. STRUTT:

Sir Thomas Barnes has been asked by the Privy Council Office (Mr.
Leadbitter) whether steps can be taken to obtain the directions of the
Law Officers as to the form which the next accession proclamation
should take with reference especially to the form of the
accession declaration made when Queen Victoria came to the
Throne. As you will remember, the
latter form of declaration was in accordance with the requirements laid
down in the Regency Act, 183D, and contained accordingly a saving
for the rights of any posthumous issue of King William
IV. I have now had a letter
from Sir T. Barnes suggesting that the questions to be put to the
Law Officers should be (l) what are the rights of a posthumous
son, and (2) if he has any rights whether any express reservation
of those rights should be contained in the accession
proclamation; and he has asked me whether there are
any papers in H.O. connected with the drafting of the Regency
Act, 183l, which would throw light on this matter - I think it
may be taken as pretty certain that there are no such papers in
H.O. now, but this should be verified by the
Registry. Could you get someone to do
this and, further, if there are no such papers here, ask the
Record Office to send any papers which they may have on the subject?
O.F.D.

16.3.37.
PUBLIC RECORD OFFICE,
Chancery Lane, W.C.2.

19 March, 1937.

Dear Strutt,

We cannot identify the Regency Act of 1831 to which you refer in your
letter to me of the 17th instant and think that what you have in mind
in the statute, 1 William IV, cap. 2, which was enacted on 23 December,
1830.

On this assumption, we are sending to the Superintendent of the
Registry at the Home Office, this afternoon, the four bundles of
general domestic correspondence and papers covering the period from
accession to enactment, viz., H.O.44/20-23. Whether any
such papers as you desire are to be found therein we cannot, as you
know, say.

We have, furthermore, examined the following bundles and volumes, but
nothing to the point has been observed:-

H. A. Strutt, Esq.,
Home Office,
Whitehall, S.W. 1.
CASE TO THE LAW OFFICERS TO ADVISE AS TO THE SUCCESSION TO THE THRONE

The Law Officers and Counsel are asked to advise as to whether or not
in the event of the demise of His Present Majesty without issue male
and leaving more than one daughter surviving, the Crown devolves on the
eldest of those daughters. There are enclosed with this Case two
memoranda dealing with this question, one prepared by Mr. Eagleston and
the other prepared by Sir Geoffrey Ellis, and a Note by Mr. Ram of
Parliamentary Counsel on the interpretation of the relevant Statutes.

The succession to the Throne is governed by the Act of Settlement,
1700, Section 1 of which provides that after the death of William III
and Anne, and "in default of issue of the said Princess Anne and
of His Majesty respectively, the Crown and Regal Government of England,
France and Ireland, and of the Dominions thereunto belonging... shall
be remain and continue to the said Most Excellent Princess Sophia
(Sophia Electress and Duchess Dower of Hanover daughter of Elizabeth
late Queen of Bohemia daughter of James I) and the heirs of her body
being protestants". The answer to the question upon which the Law
Officers' and Counsels' opinion is desired therefore depends on the
construction to be given to the words "heirs of her body" in this
Statute, and on that alone. Until the beginning of this century it had
been generally assumed that if the heirs were two or more daughters,
the eldest succeeded to the throne. In 1901, however, this view
was challenged by Mr. J. H. Round in an article which he wrote on the
succession of the Crown (see Round's Peerage & Family History, pp.
458 et seq.) He contends that there is no precedent for
construing the words "heirs of her body" as a limitation to the
eldest alone of two or more daughters; he applies to the Crown the
analogy of the law of descent to real estate where daughters take
equally as co-parceners and also to peerage dignities, particularly
baronies, the impartible nature of which leads, not to their
inheritance by the eldest co-heiress alone, but to their disappearance
by falling into abeyance, until the Crown calls them out of
abeyance. He also cites in support of his contention the case of
the hereditary office of the Lord Great Chamberlain in 1781 in which it
was held that that office vested jointly in the two daughters of the
Duke of Ancaster the last holder of the office. He points out that in
the two cases in which succession to the Crown by co-heiresses had
arisen before in English history, that is to say, Queen Mary and
Elizabeth, and Queen Mary II and Anne, the succession had been
regulated by Statute. Moreover he rejects the precedent of the
case of James I, who, as heir of the elder daughter of Henry VII, came
to the Throne to the exclusion of the heirs of the younger daughter and
in direct defiance of the Will of Henry VIII.

It is submitted that Mr. Round's argument is based upon an analogy for
which there is no justification. The following quotation from the
late Professor H.W.Fowler may be considered apposite - "It" (i.e.
analogy) "is perhaps the basis of most human conclusions, its liability
to error being compensated for by the frequency with which it is the
only form of reasoning available". Mr. Round was doubtless very
familiar with the law relating to the devolution of peerages and it may
be that he adopted it by way of analogy as "the only form of reasoning
available" without sufficient consideration of the rule which requires
statutes to be construed according to the context provided by their
subject
matter.

In construing the words "heirs of the body" in the Act of Settlement it
is important to ascertain the state of the law at the time the Act was
passed. It appears that English law did then, and does still,
recognise certain impartible inheritances which pass to the elder of
two daughters because from the peculiar characteristics of the
inheritance it cannot be divided or fall into abeyance; it is
submitted that the Crown is one of these impartible inheritances. This
aspect of the case is exhaustively examined in Sir Geoffrey Ellis's
Memorandum to which the Law Officers and Counsel are referred. It
will be sufficient here to mention a few examples.

First the Palatinate Earldoms of Chester and Pembroke, great offices of
honour with a jurisdiction (in their own territories) almost royal by
their nature impartible.

In the Chester case the Earl's heirs were the two daughters of his
eldest sister and his two youngest sisters. The husband of the elder
daughter of the eldest sister made a claim in her right to be Earl and
that right was never disputed, although her right to succeed to the
lands was disputed. In the end, however, both the Earldom and the
lands were annexed by the Crown.

In the Pembroke case the Earl died without issue leaving two sisters,
and Letters Patent were issued to the grandson of the eldest sister "on
the declaration of the skilled persons whom we have consulted that
inasmuch as he is descended from the eldest sister the prerogative of
the name and honour is due to him".

As a second example the case of "castles for the necessary defence of
the realm" may be referred to. Bracton writing of co-heirship in
his De Legibus Angliae (Ed. 1569 F 76 Rolls Series Vol. 1 p.604) gives
the reasons for such a castle
falling within the category of impartible inheritances as "lest the
capital mansion should be thus divided into several shares and the
severed rights of counties and baronies should be diminished to nothing
whereby the realm would fail, which is said to be made up of counties
and baronies".

It is submitted that the Crown is an impartible inheritance and that
the supreme executive authority must of necessity be vested in one
person.

In this connection it is not perhaps irrelevant to refer to the
position of Philip of Spain who on his marriage with Queen Mary was
regarded in some degree as a "joint sovereign". The position,
however, was made clear by the Act 1 Mary Sess. 3 c. 2, which declared
Queen Mary the sole executive power in England. Again, William III and
Mary II were declared King and Queen, but the Act of 1 Wm. & Mary
C.2. settling the succession defined the position by enacting (S.8)
"that the entire perfect and full exercise of the Regal Power of
Government be only in and exercised by His Majesty in the names of both
Their Majesties during their joint lives".

There are moreover, very strong reasons against the view that the
Crown could fall into abeyance. In the first place it would be in
direct conflict with the well-established rule of common law that "the
King never dies" (see Calvin's Case Coke's Reports, Part 7 10 (b) where
it is said: "It is true that the King in genere dieth
not"): under this rule there must always be a next heir ready to
succeed immediately on a demise of the Crown, and consequently anything
in the nature of an abeyance would seem to be impossible.

Secondly in the case of a barony the Crown is always there to call a
barony out of abeyance if it thinks fit, but if the doctrine of
abeyance is to be applied to the Crown, it is extremely doubtful
whether there is any authority which could call the Crown out of
abeyance. Such a state of affairs could not be dealt with by
Parliament for Parliament is constitutionally incapable of functioning
without a Sovereign.

With reference to the case of the Lord Great Chamberlain in 1781 on
which Mr. Round relies it may be mentioned that the succession to the
office of Lord Great Chamberlain came before the House of Lords again
in 1902 when the previous decision was substantially followed. In
1907, however, there was an important case, the Lucas Barony Case,
which, it is submitted, shows that the office of Lord Great Chamberlain
is an office sui generis and that the decision in that case cannot be
relied upon as supporting Mr. Round's contention. These cases are
examined in Sir G. Ellis's memorandum to which the Law Officers and
Counsel are referred.

The history of legislation in this country as to the succession
supports, it is submitted, the view that the eldest of two or more
daughters succeeds to the throne.

The first Acts dealing with the
succession to the Crown were passed in the reign of Henry
IV. In that reign the succession was first entailed on the
Prince of Wales and the heirs of his body; later on it was
thought desirable to exclude the daughters and an Act was passed
re-settling the Crown on the King and the heirs male of his
body. It was, however, decided again to alter this so as to
include the daughters, and the Crown was eventually settled upon King
Henry and the heirs of his body (7 Henry IV cap. 2)

The history of Richard III's succession should perhaps be
mentioned for
the sake of completeness although it does not appear to support either
theory. The House of York claimed the throne by hereditary right as
being descended from Lionel
Duke of Clarence a son of Edward III older than John of Gaunt from whom
the House of Lancaster was descended. On the death of Edward V and his
only brother, there were living four daughters of Edward IV., and
Edward Earl of Warwick, a minor a son of the Duke of Clarence (who was
an elder brother of Richard III). If the strict hereditary line
had been followed, the four daughters of Edward IV (on Mr. Round's
theory as co-parceners) and the young Earl of Warwick should have
succeeded in preference to Richard III. It is to be observed that
in the Act confirming Richard's title the Crown is offered to him "as
to you of right belonging as well by inheritance as by lawful
election." In that Act, and also in the Act confirming Henry VII's
title the Crown was settled on the King and the heirs of his
body. The relevant portions of these Acts are set out in Adams
& Stephens Select Documents of English Constitutional History at
pp. 173, 207 and 213 respectively.

The next Act is 25 Henry VIII cap. 22 (1533) whereby the marriage
of
Henry VIII to Catherine of Aragon was declared null and void,
consequently illegitimating Mary, the issue of that marriage, and the
succession was secured by Section 7 to Henry VIII and the heirs of his
body lawfully begotton. An elaborate definition of "heirs of his
body" is then given which after dealing in detail with heirs male
proceeds as follows:-

"And for default of such sons of your
body begotton, and of the heirs of the several bodies of such sons
lawfully begotton, that then the said imperial crown, and other the
premises, shall be to the issue female between your majesty and your
said most dear and entirely beloved wife, Queen Anne, begotton, that is
to say: first to the eldest issue female, which is the Lady
Elizabeth, now princess, and heirs of her body, lawfully begotten, and
for such issue, then to the second issue female, and to heirs of her
body lawfully begotten, and so from issue female to issue female, and
to the heirs of their bodies one after another, by course of
inheritance, according to their ages, as the Crown of England has been
accustomed, and ought to go. in cases where there be heirs female to
the same; and for default of such issue, then the said imperial crown,
and all other the premises, shall be in the right heirs of your
highness for ever".

It may, of course, be argued that this elaborate definition was
necessary in order to secure that the eldest daughter should
succeed; it is to be observed however that inheritance by the
eldest daughter and other daughters in succession is expressly declared
to be "as the Crown of England has been accustomed and ought to go".

Three years later in 1536 the succession was again the subject to an
Act of Parliament, 28 Henry VIII c.7., by which the King's marriage
with Anne Boleyn was declared void and Elizabeth illegitimated. The
Crown was then settled on his male issue by his wife, Jane Seymour,
and by any other lawful wife, and in default of male issue on the
female issue in the same terms exactly as the previous Act.

The last of Henry Succession's Acts was 35 Henry VIII c.l. under which
the Crown was settled on Edward, Mary, Elizabeth and the heirs of their
bodies. In this case there was no elaboration of the
expression "heirs of the body" in relation to female issue; having
regard to the elaborate definition of that phrase in the two previous
Acts, the first of which was passed only ten years previously it was no
doubt thought that repetition was unnecessary. It can hardly be
the case that the law as to heirship should have changed in so short a
time.

Section 6 of this Act gave the King power, if the heirs mentioned
should fail, to appoint the Crown by Letters Patent or by Will to
any persons he pleased. On Elizabeth's accession an Act (1
Eliz. c.3.) was passed confirming the last-mentioned Act and
recognising the title of the Crown to be in her and the heirs of her
body without further elaboration.

Under the power given to him to appoint by Will Henry VIII appointed
the Crown in favour of the heir of his younger sister, Mary Duchess of
Suffolk. On the death of Queen Elizabeth James I came to
the throne in defiance of the appointment in Henry VIII's Will, and
immediately an Act (1 Jac. I, c.l.) was passed to recognise his title
to the Crown. That Act recites that he is lineally, rightly
and lawfully descended of the body of the Most Excellent Lady Margaret
eldest daughter of King Henry VII and Queen Elizabeth his wife,
daughter of King Edward IV, the said Lady Margaret being eldest sister
to King Henry VIII, and it was recognised that King James was "our only
lawful and rightful liege Lord and Sovereign" and it was declared that
the Imperial Crown of the Realm of England "did by inherent birthright
and lawful and undoubted succession descend and come to Your Most
Excellent Majesty as being lineally, justly and lawfully next and sole
heir of the Blood Royal of this Realm as is aforesaid".

The next statutory enactment is the Bill of Rights whereby the Crown is
settled on King William III and Queen Mary, and the survivor of them
during their lives and after their death to the heirs of the body of
Queen Mary, and in default of such issue to Princess Anne and the heirs
of her body and in default of such issue to the heirs
of the body of King William III.

The last statutory enactment was the Act of Settlement above
referred to.

In view of the considerations set out above and in the documents
accompanying this case it is submitted -

that the expression "heirs of the body" in the Act of Settlement
ought not to be construed by analogy with the law relating to property
or peerages, but according to the established law relating to the
succession to the Crown;

that even if those words could in that context properly be
construed in the same way as they would be construed when used in
relation to property or peerages, the Crown is pre-eminently an
inheritance of that class which is recognised by the law as impartible
by reason of the peculiar characteristics and duties belonging thereto,
and consequently the Crown in the absence of heirs male must descend to
heirs female in order of seniority.

THE LAW OFFICERS AND COUNSEL are accordingly asked to advise whether in
the event of the demise of His present Majesty, without issue male,
leaving two or more daughters him surviving, the Crown would descend to
the eldest of those daughters.
SUCCESSION TO CROWN

OPINION OF THE LAW OFFICERS OF THE CROWN AND SIR GEOFFREY ELLIS.

The argument which we are asked to consider is based upon the
fact that
in the descent of land, in the succession to baronies by writ and in
some offices of honour the eldest heir female does not succeed as of
right. It is therefore said that the phrase "heirs of the body" in the
Act of Settlement cannot be construed so as to apply the rule of
primogeniture as between females in the succession to the Crown.

Words must always be construed in their context. Even if the word
"heirs" had a uniform meaning when applied to rights and offices other
than the Crown it does not follow that such a meaning must be
applied literally for the purpose of construing the Act of Settlement
without any reference to the peculiar Office (i.e. the Crown) with
which the Act is concerned. The word has, however, no such
uniform meaning, and in our view the attributes of the Crown and the
recognised constitutional principles which apply to the position of the
Sovereign deprive the analogies attempted to be drawn from other
aspects of the law of any real force.

We deal first with the exceptional position of the Crown:

1. It has always been recognised that a woman can succeed to the
Throne and be Queen in her own right. The "regall power" is in the
Queen's Majesty as fully and absolutely as ever it was in Kings (see 1
Mary Sess. 5 c.l.). This has
never been the rule in relation to those Offices Honour which the
argument we are considering has analogous in descent.

2. The Crown is, to use the old word, impartible; and
therefore its powers and rights are not capable of being exercised
jointly. This rule is no doubt derived from the fact that the
Crown is the supreme executive authority. The supposed exceptions
to the rule are only apparent.

This differentiates the Crown from, for example, rights over land,
which can be held jointly, or be the subject of partition. It is
worth noting that lands held in fee simple by the Crown were apparently
not partible. (Calvin's Case 7 Co. Rep. 12. b.). "After the
decease of King Edward the elder daughter Queen Mary did inherit only
all his lands in fee simple. For the eldest daughter or sister of
a King shall inherit all his fee simple lands." (Coke on
Littleton 15. b.).

Philip, the husband of Queen Mary, was in some degree regarded as a
joint Sovereign, but in law the Sovereignty was sole and remained in
the Queen, even after her marriage. (See Act 1 Mary, Sess. 3. c.
2.). The regal position of William and Mary was unprecedented and
anomalous in origin, affording no guidance as to the character of the
Office in ordinary circumstances. The Act (1 William and Mary
Sess. 2 c. 2) which defined and regulated their position confirms the
proposition now being advanced, in that during their joint lives the
"Entire perfect and full exercise of the Regall power and Government"
-was in and to be exercised by His Majesty in the names of both.

3. "The King never dies", and therefore there can be no gap in
the holding of the Crown. (See 7 Co. Rep. 10. b.). On the
demise of the Crown there is an automatic succession. This
differentiates the Crown from an Office of. Honour, such as the Lord
Great Chamberlain, which has for some generations remained in
co-heirship. There is a similar differentiation in the descent of
baronies by writ which, on the happening of coheirship, fall into
abeyance, and so remain until a sole heirship occurs, or the Crown
chooses, by nominating one of the coheirs, to terminate the abeyance.
Moreover the abeyance need not be terminated. If it be possible
to think of the Crown as in abeyance, how, legally, could such an
abeyance be terminated?

4. The powers and rights of the Crown as a whole cannot apart
from Statute be exercised by deputy. This differentiates the Crown from
Offices of Honour, the duties of which can be performed by a deputy
appointed by the co-heirship and approved by His Majesty.

Although the exact question has never arisen in its present form, the
history of the Succession to the Crown supports the view we hold.

In the year 1290 Edward I married his younger daughter Joan to the Earl
of Gloucester, one of his most powerful nobles, and probably having in
mind the frequent changes in succession during the century and a half
following the death of the Conqueror, compelled the Earl of Gloucester
to take an oath that he would be loyal to the King's sons and daughters
and would not try to upset the normal succession.

This oath, which was duly recorded, is the first written record of what
may be regarded as the proper feudal succession to the Crown. The date
is 1290. The record states that the Earl of Gloucester accepted that
the Crown should follow the rules of primogeniture for the sons and
daughters of the King, and their heirs. Any possibility of co-heirship
to the Crown is definitely excluded, since the instrument in question
after mentioning the sons of the King, inter alia, prescribes the
succession to be in "Dame Alianore, the eldest daughter and the heirs
of her body", and her failing to "Dame Joan and the heirs of her body",
and failing Joan and her heirs the realm is to remain to her "plus
procheyne seur è issi de filie en filie, è de eyr en eyr."

This is the clearest indication of primogeniture for daughters as well
as for sons. This instrument is referred to in the Lords' Reports
on the Dignity of a Peer, I, p. 205, and is printed in Rymer's Foedera
(Ed. 1705), Vol. II, p. 497, "De Successione ad Coronam Angliae"
wherein it is stated to come from a copy in a book kept in the Treasury
of the Receipt of the Exchequer. There can be no reason for
doubting its authenticity.

In the reign of Henry VIII three Statutes were passed dealing
with the
succession. The first in 1533 (25 Hen.VIII c. 22) contained the
following words :-

(iv) at end ..." and for default
of such sons of your body begotten and of the heirs of the several
bodies of every such sons lawfully begotten, that then the said
Imperial Crown shall be to the issue female ... first to the eldest
Issue Female and to the heirs of her body lawfully begotten, and for
default of such issue then to the second Issue Female and to the heirs
of her body lawfully begotten, and so from Issue Female to Issue
Female and to the heirs of their bodies one after another .... by
course of Inheritance according to their ages as the Crown of England
hath been accustomed, and ought to go in cases when there be heirs
female to the same."
(Stats. of the Realm, Vo. 3, p. 473.)

The course of female succession is here definitely declared.

In 1536, by 28 Henry VIII c. 7 the Succession is again changed
but the
reference to female succession is in terms of the previous Act. Finally
in 1543 by 35 Henry VIII c. 1. the Succession is fixed in
Edward, Mary, Elizabeth and their heirs, in order. The expression
"heirs of the body" is used without qualification. With the
previous Statutes before the draftsmen, if "heirs of the body" in
relation to female succession had been intended to carry a different
meaning, express words in that sense would have been inserted.
By his Will Henry VIII sought under statutory authority to
disinherit
the descendants of his elder sister, Margaret of Scotland, in favour of
the descendants of his younger sister the Duchess of Suffolk. In
defiance of the Act giving this Will statutory effect, which was still
on the Statute Book when King Henry VIII died and had been
confirmed by an Act of Queen Elizabeth (1 Elizabeth c. 3), James I, the
descendant of the elder sister, succeeded Elizabeth. On the
argument put to us he could have been no more than joint heir with
William Seymour. The matter was regularised by the first Act of
the new reign, which contained the following words:

"did by inherent birthright and lawful
and undoubted succession descend and come to your Moste Excellent
Majestie as being lineallie justly and lawfullie next and sole Heire of
the Blood Royal of this Reamle."

In other words, traditional feudal descent is relied on as
against the
statutory bar of Henry VIII's will. Coke, writing in 1628, says
as follows:

"But the dignity of the Crowne of
England is without all question descendible to the eldest daughter
alone, and to her posterity, and so it hath been declared by Act of
Parliament For regnum non est divisible." (Coke on
Littleton Ed. 1628 p. 165 )

When in the year 1701 the Act of Settlement was passed it must be
presumed that the legislature knew the existing state of the law. The
legislation in relation to succession during the reign of Henry
VIII, the Act 1 James I, and subsequent legislation in the reign of
William and Mary must have been carefully reviewed. The
word "heirs" was never in any way qualified and it must be presumed
that with the declaratory clauses relating to daughter succession and
the statement that James I was "sole" heir the view then held was
that "heirs" must be construed to mean that a "sole" heir would succeed
to the throne and that when daughters appeared in the succession the
rule of primogeniture would be followed. This is also the
view accepted by Blackstone (Commentaries I pp.194 et
seq.).

While we do not think it necessary to discuss in detail the meaning of
the word "heirs" in the context of land, abeyant peerages, offices of
honour, and feudal tenures at large, it may be pertinent shortly to
review generally not only the single instance of the Lord Great
Chamberlainship which is specially referred to, but other successions
also of feudal quality.

Examination of the succession to the Lord Great Chamberlainship clearly
indicates that no definite rule of law is illustrated and that the
office must be regarded as sui generis. Par from being simple
like heirship to land, or even susceptible of treatment as an abeyant
barony, it is an impartible co-heirship in which the duties are
performed by a deputy agreed on by all the members. Its descent has
been arbitrarily interfered with by the Crown, who made it the subject
of a personal award which later was validated by Act of
Parliament. It has also been held subject to the doctrine of
possessio fratris, and has been regarded partly as a dignity and partly
as an office of profit. There can be no real analogy between such
a succession and that to the Crown.

Moreover there is little real analogy between the Chamberlainship
succession and those of the other feudal heirships referred to.

In all these feudal heirships a definite rule of succession
obtained. When females appeared in the succession the sole right
was in the eldest. In the case of her having a husband or a male
heir of full age these filled the succession. Otherwise she could
appoint a deputy. The true view is that the eldest daughter
succeeds, notwithstanding her disability personally, to perform the
feudal obligations. There never was admitted a possibility of
co-heirship. Impartibility and personal responsibility were
essential for the proper discharge of feudal obligations.

Two outstanding examples are the Palatinate Earldoms of Chester (1237)
and Pembroke (1339) both as near to Royalty as any feudal honours could
be in England. In both cases disputes arose on the
partition of lands. In the Chester case the right as set out
above of the eldest co-heir in the Earldom was never questioned and in
the Pembroke case the regalia and title of Earl Palatine are expressly
bestowed on the eldest co-heir by the Crown the principle involved
being clearly stated in the Letters Patent. For the purposes of
reference it may be convenient to cite the authorities which deal with
these cases. For the Earldom of Chester see Knyghton's Chronicle
C. XXXV: Coke on Littleton: Parceners 165. Cruise on
Dignities Vol. I, p. 181; Lords' Reports on the Dignity of a Peer III.
p.130; Round's Peerage and Pedigree Chapter on the "Muddle of the Law",
(Vol. I. pp. 128 et. seq.). For the Earldom of Pembroke see
Earldom of Norfolk Claim 1906: Speeches of Counsel p. 55; Lords1
Reports on the Dignity of a Peer III. 180, 181. The same
rule of succession was always applied to the descent of the Capita of
Earldoms and baronies, and certain important castles. (See
the Barony of Lucas Claim, Petitioner's case with Appendices).

The remaining three Great Offices of Honour - Marshal, Steward and
Constable - have all been the subject of dispute. These descents
were also discussed in detail in the Lord Great Chamberlain Case, 1902,
the Earldom of Norfolk Case, 1906, the Barony of Lucas Case, 1907, and
the Earldom of Oxford Case, 1912.

So long as feudal heirships subsisted the Offices of Steward and
Marshal followed the rule of succession applicable in Palatinate
Earldoms and the capita of earldoms and baronies. The office of
Constable was in question as late as 1515 being referred to the House
of Lords and all the Judges by King Henry VIII. (3 Dyer
285b, reprinted 73 Eng. Reps. 640 Sir W. Jones Reps. 124, reprinted 82
Eng. Reps. 66.). The Judges found that the office was
subject to the eldest daughter rule of succession termed generally jus
esneciae or droit d' ainesse It is to be noted that this decision is
strongly controverted by J, H. Round (Peerage and Pedigree, Vol. 1, pp.
147 et seq.) who holds that the true facts were never before the Judges
and that the Office was purely tenurial, and that the lands concerned
were in several hands. Round does not controvert the principle of
the eldest daughter succession in general to offices of Honour and to
the capita mentioned.

This principle of eldest daughter succession is clearly embodied in the
patent creating the Lucas barony and the Act of Parliament confirming
the same, and was accepted by the Committee for Privileges in the
Barony of Lucas Case, 1907, as a definite illustration of the course of
succession which the descent of the barony must follow. It is to
be noted that this case was heard five years after the Chamberlainship
case of 1902, and that in the interim new research had been prosecuted.

It is clear to us that quite apart from the special nature of the
Crown, the word "heirs" in general and in many of the descents we have
reviewed has no uniform meaning. This bears out the rule of law
that words must be construed by giving them that meaning in the English
language which is applicable to the subject matter to which they relate.

We are not asked to advise on the position which would arise if on the
death of a King leaving one or more daughters the Queen were
pregnant. If the pregnancy terminated in the birth of a son
he would be the heir. If no previous statutory provisions for
dealing with the interim period between the death and the end of the
pregnancy had been made, reliance would have to be placed on the
inherent power of the Constitution to make necessary provisions to meet
unprecedented circumstances hitherto unprovided for.

Subject to this last point, we are of opinion that in the event of the
demise of His present Majesty, without issue male, leaving two or more
daughters him surviving, the Crown would descend to the eldest of those
daughters.

D.B. SOMERVELL
T. J. O'CONNOR
GEOFFREY ELLIS

Law Officers' Department.
24th March, 1937.

687,512/16

Treasury Solicitor

The Succession. Question of posthumous issue.

Fds case & opinion of Law Officers & Counsel.

MINUTES

This Case and the Opinion of the Law Officers and Sir Geoffrey Ellis
thereon deal with a question which is of legal and historical
importance, notwithstanding that the contingency with which the Opinion
deals is one which is most unlikely to arise. The Law Officers
advise that in the event of the birth of a posthumous son of His
Majesty the son would succeed to the Throne if at the demise of His
Majesty there were no living male issue of His
Majesty. This is the effect of their
affirmative answer to the question actually put to them in the
Case; but, as they point out in their Opinion, there
is a further question to consider, viz. what would be the position
without further legislation if when a reigning King dies, there is a
possibility of a posthumous son being born who would
succeed. If in existing
circumstances the King were to die Princess Elizabeth would become
Queen, subject to the rights of a posthumous male
Heir. If such an Heir were subsequently
born, he would, in the absence of legislation, succeed to the Throne
and the reign of Elizabeth as Queen would thereupon cease during her
lifetime - a position which, as the Law Officers point out, is an
anomalous one. The Law Officers do not
express any definite view as to whether there should be legislation to
avoid the possibility of a reign terminating in this way on the birth
of a posthumous child. They merely
say that there is something to be said for such a provision being made,
particularlv if the Heir or Heiress Presumptive were of full age.

The Law Officers then deal briefly with a further point not actually
put to them, viz. whether legislation is necessary to authorise the
succession as specifically provided for in the Regency Act, 1830. That
Act provided that the Heiress Presumptive (Princess Victoria)should
ascend the Throne as Queen with a saving for the rights of a male
posthumous Heir. The Law Officers
recognise that such legislation might now be thought to be undesirable
- as indeed it would be having regard to the constitutional position of
the Dominions- and come to the conclusion that the precedent of 1830
and the principle on which it was based would be sufficient authority
for the succession of the Heiress Presumptive subject to defeasance if
the male Heir were
born.

On the question of the form of Accession Proclamation to be used in the
event of the death of His present Majesty leaving his widow surviving
Him,the Law Officers advise that as a matter of propriety rather than
of law the Proclamation should indicate the possibility of the
accession of a posthumous son by a saving of the rights of such a son.

The points on which legislation might possibly be required are
therefore:—

Legislation in advance of the event to authorise the succession
of the female heiress presumptive (as was provided for in the Regency
Act, 1830) and thus establishing under express statutory authority the
right of the heiress presumptive to succeed subject to the rights of
any posthumous male heir. (The possibility of legislation to avoid the
termination of the reign of such heiress on the birth of the posthumous
child does not, I think, need consideration in existing circumstances).

Legislation to add to the oath of. allegiance the words
thought
necessary in| the legislation of 1850 in order to save the righto of
the posthumous issue of King William 1V.

Legislation (on the lines suggested on p.4 of the Case
submitted
to the Law Officers) to determine whether a divesting of the right of
the presumptive heir by the birth of the posthumous son would be a
"demise of the Crown" within the meaning of the Demise of the Crown
Act, 1901. Any such legislation would not involve consultation with the
Dominions.

On the question of possible legislation, I thought it desirable to
obtain the views of the Dominions Office; and I
accordingly wrote en October 5th to Sir Grattan Bushe (copy of letter
within). In his reply, dated
2nd November, he agrees that legislation should be avoided, if
possible, but he thinks it would be well if at any time there was good
reason to suspect that this particular question might become a
practical problem to stake sure by informal consultation that the
Dominion Governments agree with the view that legislation would not be
necessary. The Dominions Office look to
the H.O. to give them the earliest possible intimation of there
being such "good reason".

In the light of the views expressed by the Lav Officers and (as regards
(l) above) by the Dominions Office, it seems clear that in
existing circumstances no legislation should be
contemplated. If so, the only action
required for the time being is to note that in certain
events, as indicated at x1 above, the D.O. require the
earliest possible intimation of the position if and when there is good
reason to expect that this question might become a practical
problem. I think this means in effect that if at any
time the Queen is expecting another child, we most tell the Dominions
Office at once in order that they may start informal consultations with
the Dominion Governments in order to see whether they agree that
legislation is not required in order to deal with the contingency.
O. F. D. 10/12/37

I have mentioned this to Sir H. Boyd who does not think it
possible for
him to ask - however informally - for any specially early information
to be given in the event of another child being expected.

The L.O.O. was obtained at the instance of the Privy Council Office,
and Mr. Leadbitter tells me that the question of legislation was
discussed by the Lord President with the Prime Minister and the
Secretary of State for the Dominions and it was agreed that no
legislation should be introduced at present.

Sir O. Dowson suggests however (see note within addressed to me) that
there is still a question to be decided (probably in the negative),
namely, whether a decision should now be reached by interdepartmental
discussion as to whether any (and if so what) legislation would be
needed if another child was expected.

If this question is to be taken up, I think the India Office (which has
not, so far as I have been able to ascertain, been approached on the
matter) should be represented in the discussion. But the contingencies
contemplated seem so remote that probably it is inadvisable to embark
on such discussion.

? Say to Sir Grattan Bushe that if and as soon as we have at any future
time good reason to expect that the question might become a practical
problem we will communicate with them - and that in the meantime it
appears to be neither necessary nor expedient to embark upon any
interdepartmental discussions as to any legislation that might become
necessary in the circumstances contemplated.
(Sir O. Dowson agrees to this reply.)

LMBO 1/2

see also ./17
CR 7/2/38
?? 17/2
SoS to see

I agree. I will speak personally to Sir A Hardinge about this and get
from an informal understanding to let us know if and when the
contingency arises
JS 18/2
Accession Proclamation

Case for the Opinion of the Law Officers and Counsel with Opinion

dated 23 July, 1937

Treasury Solicitor
T. & M. 21646

It is the custom immediately after the accession of a Sovereign to
prepare all the necessary documents which will be required upon the
next accession and the Privy Council Office is now preparing the
Proclamation of the accession of the next Sovereign. It is possible
that His Present Majesty may die without leaving any male issue living
at bis death, but that a son might be born to him posthumously. The Law
Officers and Counsel are therefore asked to advise whether, having
regard to that possibility, the draft Accession Proclamation now in
course of preparation, should contain a saving of the rights of a
posthumous son.

In considering this question it is necessary, it is submitted, first to
ascertain whether a posthumous son would have any rights. If he would
have no rights, the question of a saving in the proclamation would not
arise ; if he would have rights, then the question arises as to whether
or not notice thereof should be given in the Accession Proclamation.

A case of a posthumous heir to the English Throne has not arisen since
the Norman Conquest and there is therefore no actual precedent on the
subject ; it was, however, much discussed on the accession of King
William IV as at that time he had no living issue. The view which was
held by lawyers at that time, and the view on which the Regency Act of
1830 was based, was that the posthumous child would be entitled to
succeed to the Throne on his birth, but that in the interval between
the demise of King William IV and that date, the heir presumptive,
Princess Victoria, would be entitled to the Throne. This view was based
on analogy to the law of succession to real estate ; this analogy was
justified on the ground that both the Crown and freehold land have the
same essential characteristic that in neither case can there be an
abeyance. Moreover, it was supported by the case, which was decided on
the same principle, of the succession of Arthur, posthumous son of
Geoffrey Duke of Brittany and grandson of Henry II, to the Duchy of
Brittany.

On the introduction of the Regency Bill in the House of Lords the Lord
Chancellor (Lord Lyndhurst) made a statement on the law as to the
rights of posthumous issue of King William IV. The Law Officers and
Counsel are referred to this statement which is set out in
Parliamentary Debates, 3rd Series, Vol. 1. 500 et seq.

The following extracts from the statement are for convenience set out
here :—

Col. 505.

"In that case (i.e. in the case of the
birth of a posthumous child), My Lords clearly and without the
possibility of controversy, that child, whenever its birth took place
would instantly succeed to the Throne. Of that there is no doubt
whatever."

The Lord Chancellor, after pointing out that no case of the kind
had occurred since the Norman Conquest, and mentioning certain foreign
instances, proceeds (506):

" We are, therefore, driven to the
necessity of considering the subject with reference to what appears to
be the general principle of our own law. The descent of the Crown
follows the descent of real property, in most respects, except where
there are two daughters, in which the real property is shared between
them. It becomes, therefore, important to inquire what happens with
respect to a posthumous child entitled to real property. My Lords, it
has been settled in the Courts of Justice of this country, that such a
child, before it is born, cannot be seized of such property. The right
to enjoy and possess it is in the presumptive heir. He has the whole
interest in it, from the death of his predecessor until the birth of
the child. That precisely the same doctrine stands good with respect to
the Crown I will not assert with confidence ; but this principle is
undoubtedly common to both ; namely, that there can be no abeyance—that
there can be no vacancy. The King never dies. There must always be a
Sovereign : the principle applied to real property is applicable to the
Crown. The child unborn cannot be seized of the Crown : it must devolve
for the time to the Presumptive Heir. My Lords, I know that this is
only reasoning from analogy. I submit it as such only to Your
Lordships' consideration."

The view expressed above was accepted by the legal advisers of
the Crown at that time (507) :

"In considering all the bearings of a
question so difficult and complicated, I have felt it my duty to
consult all those learned men who are the official advisers of the
Crown, and they one and all concur in that view of the question which I
have now endeavoured to explain to Your Lordships, and agree in the
opinion that there are no cases on record by which we can regulate our
decision, but that we must guide ourselves by reasoning from analogy,
and by reference to those laws regulating the descent of real property,
to which I have already called Your Lordships' attention."

On the third reading of the Bill the Lord Chancellor (then Lord
Brougham) made a further statement on the legal position and discussed
the precedent of the succession to the Duchy of Brittany on the death
of Geoffrey son of Henry II who died leaving a daughter Eleanor and his
widow enceinte with a son. Col. 764 et seq. On Geoffrey's death
two rival claims were made for the wardship of his daughter Eleanor,
one by the King of France, and the other by Henry II as Duke of
Normandy. Both claimants acknowledged Eleanor to be Duchess of
Brittany though her mother was enceinte at the time. Both
admitted that allegiance was due, not to the child in ventre sa mere,
but to the eldest born child of Geoffrey to whom, as in cases of real
property, the possession at once passed. Both at the same time admitted
that that right was defeasible at once and instantaneously defeasible
by the subsequent birth of a child if that child should happen to be a
son. On the birth of Arthur the defeasance of Eleanor's title
took place and at once put an end to the dispute between Henry II and
the King of France. The Lord Chancellor regarded the discovery of
that precedent as removing all doubts and obviating all objections.

For authority to support Lord Lyndhurst's statement of the law with
respect to real estate the Law Officers and Counsel are referred to the
chapter on the entry of a posthumous heir in Watkins' Law of Descents,
2nd Edition p. 198 et seq. and also to Co. Litt. (Ed. 1832 11 B.
(Note 59 ) & 55 B. (Note 369) ) ; Shelleys Case, (1 Co. Rep.
93) and Richards & Richards (John) 754 per Vice Chancellor
Sir W. Page Wood 762.

The following extract from Watkins may usefully be stated here as
giving a correct statement of the law.

" By the feudal law the freehold could
not be vacant, or, as it was termed, in abeyance : there must have been
a tenant who was capable of fulfilling the feudal duties, and against
whom the right of others might be maintained. An infant in ventre sa
mere was not, on these occasions, considered as in esse, and,
consequently, could not be considered as a tenant. On the devolution,
therefore, of an estate, the then born person who was, at such
devolution, entitled (as, for instance, the brother of the deceased),
was permitted to succeed; and though the issue, while in ventre sa
mere, was not regarded as in esse, yet (when afterwards born) as it was
the person whom the law would have pointed out to enjoy the
inheritances of his father, had it been in esse when he died; and as
the reason for the entry of the uncle had now ceased, since the issue
became capable of holding the hereditaments descended, and of
fulfilling those duties by his guardian, such issue was permitted to
enter upon the uncle, and to enjoy the estate."

Apart from the express declarations of the intentions of the framers of
the Regency Act it is apparent from the Act itself that it was based on
the view of the law expressed by Lord Lyndhurst. Section 1, which
provides for the Duchess of Kent to be guardian of Princess Victoria if
William IV should die without issue living, provides that if a child of
William IV is born the powers of the Duchess of Kent should cease upon
the birth of such child, which is an indication that Victoria would
cease to be Queen upon the birth of such child. Section 2 relates to
the Proclamation of Princess Victoria and provides that she should be
proclaimed subject to and saving the rights of any issue of His Said
Majesty which may afterwards be born of Her Said Majesty. Section 3
provides that if a posthumous child of William IV is born the Queen
shall be the guardian and have full power in the name of such child
(who would be the Sovereign) as Regent to exercise the regal power and
government of the Realm. Section 4 provides that on the birth of such
child he should be immediately proclaimed as the successor entitled to
the Crown of these Realms ; the last-mentioned words are a clear
statement that the posthumous child was entitled to succeed to the
Throne in the place of Victoria.

It is submitted that the view as to the rights of posthumous issue of
William IV to succeed to the Crown expressed by Lord Lyndhurst was the
correct view, and still obtains at the present time. It is the only
view which is both consistent with the constitutional doctrine that "
the King never dies " and with the ordinary law of succession to real
estate. The only alternative which would be consistent with the
constitutional doctrine that " the King never dies " would be that the
presumptive heir would be entitled to the Throne to the exclusion of
the posthumous son by way of analogy to the law of contingent
remainders before the Act of 10 & 11 William IV, c. 16. It was the
rule that the remainder man must be able to take the estate the moment
the previous interest determined ; a child in ventre sa mere who, if he
had been born before the determination of the previous interest, would
have been entitled to the remainder was not considered as in esse for
that purpose and consequently lost his interest altogether. That rule,
however, only applied where the remainder man took by purchase and not
by descent, and it is submitted that it could not apply in this case as
the posthumous son clearly takes by descent. In the present case,
therefore, it is submitted that Princess Elizabeth would be entitled to
succeed to the Throne on the demise of His Present Majesty, but that a
posthumous son would be entitled to succeed to the Throne on his birth
in her place.

If the Law Officers and Counsel are of opinion that a posthumous son
would have rights to the Throne the question arises as to whether any
saving of those rights should be inserted in the Accession Proclamation
which is now to be prepared.

Queen Victoria was proclaimed Queen " saving the rights of any issue of
His Late Majesty King William IV which may be born of His Late
Majesty's Consort ". This case is not an exact precedent because the
Regency Act 1830 Section 2, specially directed that she should be so
proclaimed. Before the accession of Queen Victoria the last occasion on
which the question of posthumous issue might have arisen was on the
accession of James II. Charles II died without leaving legitimate issue
and was survived by his widow. The Proclamation of the accession of
James II, however, recites that the Crown came to him " as the only
brother and heir " of Charles II, and there was no saving for any
posthumous issue of the late King.

The Accession Proclamation has, it is submitted, no legal effect; it is
merely a formal announcement to the people of the new accession. It is
possible on the one hand to argue that it is not necessary to refer to
the rights of the posthumous son because the fact that no reference was
made would not in any way affect the rights of that posthumous son on
his birth. On the other hand, it is arguable that if the posthumous son
has rights, notice of those rights should be given and the contingent
nature of the succession by the presumptive heir should be officially
proclaimed. This would be in accordance with the precedent of the
Proclamation of Queen Victoria ; although that case was specially
regulated by statute it was obvious that the framers of the Regency Act
thought it proper that the Proclamation should contain the saving which
the Statute directed.
There is one further question to which the Law Officers' and Counsel's
attention should perhaps be drawn, and that is, as to whether a
divesting of the right of the presumptive heir by the birth of the
posthumous son would be a demise of the Crown. It is thought, however,
that this is a question which can more properly be dealt with if and
when the possibility of the succession of a posthumous child seems
likely to arise.

A copy of the Proclamation of the Accession of Queen Victoria is
enclosed with the Case.

THE LAW OFFICERS AND COUNSEL are accordingly asked to advise :—

whether a posthumous son of His Majesty would succeed to the
Throne if at the demise of His Majesty there were no living male issue
of His Majesty ;

if the answer is in the affirmative, whether any express
reservation of the rights of the posthumous son should be contained in
the Accession Proclamation which has now to be prepared, and if so what
form that reservation should take.

PROCLAMATION OF THE ACCESSION OF QUEEN VICTORIA

WHEREAS it has pleased Almighty God to call to His Mercy our late
Sovereign Lord King William the Fourth, of Blessed and Glorious Memory,
by whose Decease the Imperial Crown of the United Kingdom of Great
Britain and Ireland is solely and rightfully come to the High and
Mighty Princess Alexandrina Victoria, saving the Rights of any Issue of
His late Majesty King William the Fourth which may be born of His late
Majesty's Consort; We, therefore, the Lords Spiritual and Temporal of
this Realm, being here assisted with these of His late Majesty's Privy
Council, with Numbers of other Principal Gentlemen of Quality, with the
Lord Mayor, Aldermen, and Citizens of London, do now hereby, with one
Voice and Consent of Tongue and Heart, publish and proclaim, That the
High and Mighty Princess, Alexandrina Victoria, is now, by the Death of
our late Sovereign of Happy Memory, become our only lawful and rightful
Liege Lady Victoria, by the Grace of God, Queen of the United Kingdom
of Great Britain and Ireland, Defender of the Faith, saving as
aforesaid: To whom, saving as aforesaid, we do acknowledge all Faith
and constant Obedience, with all hearty and humble Affection;
beseeching God, by whom Kings and Queens do reign, to bless the Royal
Princess, Victoria, with long and happy Years to reign over us.
ACCESSION PROCLAMATION

OPINION OF THE LAW OFFICERS OF THE CROWN AND SIR GEOFFREY ELLIS

1. We have no doubt that the answer to this question is, Yes. It
remains however to consider what would be the position without further
legislation, if when a reigning King dies there is a possibility of a
posthumous son being born who would succeed. The Regency Act, 1830,
provided that the Heiress Presumptive should ascend the Throne as Queen
with a saving for the rights of a male posthumous Heir. If such an Heir
had been born he would have succeeded and the somewhat anomalous
position would have arisen of the Queen's reign terminating in her
lifetime. The debates in the House of Lords show that this was regarded
as putting into legislative form the result arrived at by a
consideration of feudal law and the special position of the Crown.
Reference is made to the descent of real property, but we are of
opinion that the real basis is that also referred to by Lord Lyndhurst
on introducing the Regency Bill, namely, that there can be no abeyance
and no vacancy in the holding of the Office. We think that this is a
basis which is sound in law. We have considered the documents dealing
with the Brittany case to which Lord Brougham referred on the Third
Reading of the Bill, but we doubt whether any true analogy can be drawn
between that case and the question of succession with which Lord
Brougham was dealing.

It is worth noting that twice in France in similar circumstances the
Heir Presumptive did not ascend the Throne but was declared or
appointed Regent with full powers. In Spain in 1885 the Queen
Mother was appointed Regent of the Kingdom and although there were two
daughters living and another child expected no successor was designated
until the expected child was born. Accession to the Crown,
possibly for only a few weeks, may well have been thought dangerous for
the safety and wellbeing of the Kingdom and an exceptional form of
Regency was therefore resorted to, being as it were a Regency not for
an individual incapable of exercising the powers, but for the Crown
itself, until it could be determined who would prove to be the lawful
successor. It could not, we think, be suggested that this was
inconsistent with feudal law, but we are clear that no such halt in the
succession could arise in this country unless Parliament expressly so
provided.

No doubt there is something to be said for a provision which would
avoid the possibility of a reign terminating on the birth of a
posthumous child particularly if the Heir or Heiress Presumptive were
of full age.

It remains to consider whether legislation is necessary to authorise
the succession as provided for in the Act of 1830. It might be said
that as Parliament legislated and legislated ad hoc in 1830 there
should be legislation now. We are however of opinion that if this is
felt to be undesirable the precedent of 1830, coupled with the
principle referred to on which we think it is properly based, would be
sufficient authority for the succession of the Heiress Presumptive
subject to defeasance if the male Heir were born.

In section 2 of the Regency Act of 1830 it was thought necessary to add
words to the Oath of Allegiance saving the rights of the possible
posthumous issue of King William IV, and we have considered whether
such words are necessary to be added. If so this could only be done by
legislation amending the Oath. The words of the existing Oath cover the
Heirs and Successors of the Sovereign to whom the Oath is taken. "Heir"
may be an inapt word to describe the relationship between the Heiress
Presumptive and the posthumous son, but we think the words " Heirs and
Successors " should be construed generally as covering those who
succeed to the Throne as heirs in right of their place in the
succession. We do not therefore think as a matter of law that the words
require amendment. If the events contemplated happened it would no
doubt be more satisfactory if there were legislative provision on the
Statute Book for them. We are however of opinion that in the absence of
legislation no insuperable legal difficulties would be created either
in the succession or with regard to the form of the Oath.

2. Succession to the Throne is a question of law and the Proclamation
can clothe the new Sovereign with nothing beyond that which the law
allows him, but the Proclamation is intended to declare to the People
who is the successor of the late Monarch and so to whom their
allegiance becomes due. In our opinion therefore the Proclamation
should indicate the possibility by a saving of the rights of the son as
a matter of propriety rather than of law. The terms of the Proclamation
of Queen Victoria appear to be sufficient indication of the possible
limitation on the duration of the reign by the birth of a posthumous
heir. The question whether there was any possibility of a son being
born would have of course to be considered at the time.

D. B. SOMERVELL.
T. J. O'CONNOR.
GEOFFREY ELLIS.

Law Officers' Department,
23 July, 1937

25th February, 1938.
CONFIDENTIAL
My dear Bushe,
Your letter to me of the 2nd November last about the question of
legislation to deal with the position of a posthumous Heir to the
Throne has been under consideration here for some time past; and
I am now in a position to send you a reply.

I can give you an assurance that if and as soon as we have at any
future time good reason to expect that the question might become a
practical problem we will communicate with you.

In the meantime it appears to be neither necessary nor expedient to
embark upon any interdepartmental discussions as to any legislation
that might become necessary in the circumstances contemplated; and we
agree generally with your view that it is desirable to avoid any
legislation on this subject which might require the assent of all the
Dominions.

(Sgd.) O. F. DOWSON

Sir Grattan Bushe, K.C.M.G., C.B.House of Lords,
S.W.I.

19th October, 1948

Dear Strutt,

In his letter of the 12th October (687512/23) Dadd wrote to Hunt about
the contemplated draft of Letters Patent granting the style of Royal
Highness with the titular dignity of a Prince or Princess to the
children who may be born to Princess Elizabeth. I enclose a draft
showing how I think the Letters Patent should run, on the assumption
that the instructions are substantially in accordance with Dadd's
letter.

I should like to know whether you have any criticisms to make on this
draft. It appears from the letter that the children in question are to
be Princes or Princesses. In view of the wording of the Patent of 30th
November, 1917, I do not think they would be unless the proposed Patent
makes them so. The draft • is intended to have this effect.
I am sending a copy of the draft to Sir Alan Lascelles and telling him
that I have sent it to you for any criticisms which you may have.

Yours sincerely,

H. A. Strutt, Esq., C.V.O.
GEORGE THE SIXTH by the Grace of God of Great Britain, Ireland and the
British Dominions beyond the seas King Defender of the Faith To all to
whom these prostata shall come Greeting Whereas His late Majesty King
George the Fifth by Hie Letters Patent dated the thirtieth day of
November in the eighth year of His Reign did declare His Royal Pleasure
that certain members of the Royal Family therein more particularly
mentioned should have the style title or attribute of Royal Highness
And Whereas We are desirous of defining and fixing the style and title
by which the children of [the marriage] of Our Most dearly beloved
Daughter Her Royal Highness Princess Elizabeth Alexandra Mary Duchess
of Edinburgh [and his Royal Highness Prince Philip Duke of Edinburgh]
this shall be designated And Whereas for that purpose We deem it
expedient that the aforesaid Letters Patent should be amended and
extended la manner hereinafter declared Now Know Ye that in the
exercise of our Royal and undoubted prerogative and of our especial
grace We do hereby declare Our Royal Will and Pleasure that the
children of the [aforesaid marriage] shall have and at all times hold
and enjoy the style title or attribute of Royal Highness sad the
titular dignity of Prince or Princess prefixed their respective
Christian names in addition to any other appellations and titles of
honour which may belong to them herafter And we do further declare Our
Will and Pleasure that our Earl Marshal of England or his Deputy for
the time being do cause Our letters or the Enrolment thereof to be
recorded in Our College
20th October, 1948.

Dear Napier,

Thank you for your letter of yesterday and for the draft of Letters
Patent relating to the style and dignities of Princess Elisabeth's
children.
We have now had the formal instructions from the Prime Minister and it
is definitely the case that the children are to be Princes or
Princesses. I agree with you that they would not be but for the
proposed Patent and I am satisfied that the draft does what is
intended. But there is a point on the draft on which Lascelles and I
have had some conversation and on which we are agreed. The children are
the children of the Duke of Edinburgh as well as of Princess Elizabeth
and I think it would be preferable that the name of the father as well
as of the mother should appear in the document. I suggest that this
might be done by inserting a reference to "Our dear son in law" etc.
after Duchess of Edinburgh and later on by the substitution for the
words "The Princess Elizabeth" of something like "Our Most
dearly-beloved Daughter and Son in Law."

I hope you will agree with these comments and be able to give effect to
them and that the Letters Patent can be prepared as quickly as possible.